[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R. 24, THE SAN JOAQUIN
RIVER RESTORATION
SETTLEMENT ACT
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
March 1, 2007
__________
Serial No. 110-6
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
Committee address: http://resourcescommittee.house.gov
U.S. GOVERNMENT PRINTING OFFICE
33-674 PDF WASHINGTON : 2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government
Printing Office Internet: bookstore.gpo.gov Phone: toll free (866)
512-1800; DC area (202) 512-1800 Fax: (202)512-2250 Mail: Stop SSOP,
Washington, DC 20402-0001
COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Ken Calvert, California
Frank Pallone, Jr., New Jersey Chris Cannon, Utah
Donna M. Christensen, Virgin Thomas G. Tancredo, Colorado
Islands Jeff Flake, Arizona
Grace F. Napolitano, California Rick Renzi, Arizona
Rush D. Holt, New Jersey Stevan Pearce, New Mexico
Raul M. Grijalva, Arizona Henry E. Brown, Jr., South
Madeleine Z. Bordallo, Guam Carolina
Jim Costa, California Luis G. Fortuno, Puerto Rico
Dan Boren, Oklahoma Cathy McMorris Rodgers, Washington
John P. Sarbanes, Maryland Bobby Jindal, Louisiana
George Miller, California Louie Gohmert, Texas
Edward J. Markey, Massachusetts Tom Cole, Oklahoma
Peter A. DeFazio, Oregon Rob Bishop, Utah
Maurice D. Hinchey, New York Bill Shuster, Pennsylvania
Patrick J. Kennedy, Rhode Island Dean Heller, Nevada
Ron Kind, Wisconsin Bill Sali, Idaho
Lois Capps, California Doug Lamborn, Colorado
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth, South Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Jeffrey P. Petrich, Chief Counsel
Lloyd Jones, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
SUBCOMMITTEE ON WATER AND POWER
GRACE F. NAPOLITANO, California, Chairwoman
CATHY McMORRIS RODGERS, Washington, Ranking Republican Member
Jim Costa, California Ken Calvert, California
George Miller, California Dean Heller, Nevada
Mark Udall, Colorado Doug Lamborn, Colorado
Joe Baca, California Don Young, Alaska, ex officio
Hilda L. Solis, California
Nick J. Rahall II, West Virginia,
ex officio
------
CONTENTS
----------
Page
Hearing held on March 1, 2007.................................... 1
Statement of Members:
Cardoza, Hon. Dennis, a Representative in Congress from the
State of California........................................ 11
Costa, Hon. Jim, a Representative in Congress from the State
of California.............................................. 7
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California.................................... 1
Prepared statement of.................................... 4
Nunes, Hon. Devin, a Representative in Congress from the
State of California........................................ 10
Radanovich, Hon. George P., a Representative in Congress from
the State of California.................................... 8
Prepared statement of.................................... 9
Rodgers, Hon. Cathy McMorris, a Representative in Congress
from the State of Washington............................... 5
Prepared statement of.................................... 6
Udall, Hon. Mark, a Representative in Congress from the State
of Colorado................................................ 10
Statement of Witnesses:
Birmingham, Thomas W., General Manager/General Counsel,
Westlands Water District, Fresno, California............... 66
Prepared statement of.................................... 67
Response to questions submitted for the record........... 71
Candee, Hamilton, Senior Attorney, Co-Director, Western Water
Project, Natural Resources Defense Council, San Francisco,
California................................................. 26
Prepared statement of.................................... 28
Response to questions submitted for the record........... 30
Dooley, Daniel M., Dooley Herr & Peltzer, LLP, Counsel to
Members of the Friant Water Users Authority, Sacramento,
California................................................. 14
Prepared statement of.................................... 16
Response to questions submitted for the record........... 21
Ishida, Allen R., Chairman, Tulare County Board of
Supervisors, Visalia, California........................... 80
Prepared statement of.................................... 81
Response to questions submitted for the record........... 83
Michael, Cannon, Landowner in San Joaquin River Exchange
Contractors Water Authority, Los Banos, California......... 73
Prepared statement of.................................... 74
Response to questions submitted for the record........... 75
Peltier, Jason, Principal Deputy Assistant Secretary for
Water and Science, U.S. Department of the Interior,
Washington, D.C............................................ 35
Prepared statement of.................................... 36
Response to questions submitted for the record........... 40
Robbins, Kenneth M., General Counsel, Merced Irrigation
District................................................... 75
Prepared statement of.................................... 76
Response to questions submitted for the record........... 79
Saracino, Nancy, Chief Deputy Director, California Department
of Water Resources......................................... 47
Prepared statement of.................................... 48
Response to questions submitted for the record........... 50
Wolk, Hon. Lois, Assembly Member and Chair, Committee on
Water, Parks, and Wildlife, California State Assembly...... 52
Prepared statement of.................................... 53
Response to questions submitted for the record........... 56
LEGISLATIVE HEARING ON H.R. 24, ``THE SAN JOAQUIN RIVER RESTORATION
SETTLEMENT ACT''
----------
Thursday, March 1, 2007
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 10:05 a.m. in
Room 1334, Longworth House Office Building, Hon. Grace F.
Napolitano [Chairwoman of the Subcommittee] presiding.
Present: Representatives Napolitano, McMorris Rodgers,
Costa, Radanovich, Udall, Nunes, Cardoza and Calvert.
STATEMENT OF THE HON. GRACE F. NAPOLITANO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. Napolitano. Thank you, ladies and gentlemen, and good
morning. This meeting of the Subcommittee on Water and Power
will come to order. I want to gavel somebody with this.
The purpose of this Subcommittee hearing is to hold a
discussion on H.R. 24, the San Joaquin River Restoration
Settlement Act. But before we begin the hearing, I would like
to take a prerogative to mention that this is the first
Subcommittee hearing in the 110th Congress of which it is my
privilege to serve as the Chairwoman, and give a warm welcome
to my Ranking Member to the Subcommittee, Congresswoman Cathy
McMorris Rodgers of Stevens County, Washington. We look forward
to working together.
Before I begin, it is my understanding that we have Devin
Nunes from California who wishes to videotape portions of this
hearing. Normally we only allow registered newscasts, news
media. We just heard of the request. And I have talked to Mr.
Nunes, who is not a member of this committee, and I would like
to know if any of the Members object to having portions of this
hearing recorded. I would like to have everybody know that this
is not a credentialed media rep, and if there are any
objections, I would like to hear them. If not, we will approve
his being able to record. No objections.
[Laugher.]
Mrs. Napolitano. I would like to remind all Members that
any request to do any taping, any video recording, must be made
through the Committee Press Office well in advance, at least 48
hours prior to the hearing. So with that, we will move on.
I am pleased to welcome several of our colleagues to the
Subcommittee. Cathy, you will do your presentations. And I
would like to begin by asking unanimous consent that
Congressmen Radanovich, Cardoza, and Nunes be allowed to sit in
the Subcommittee hearing to participate in these hearings.
Mr. Nunes. I object.
Mr. Costa. Thank you, we can leave now.
Mrs. Napolitano. Hearing one objection, it is ordered.
[Laughter.]
Mr. Costa. Madame Chairman, can we request that Portuguese
be removed from the room?
[Laughter.]
Mrs. Napolitano. Do you see how it is going to happen in
this Subcommittee? Withdrawn. And you understand that we have
great relationships on both sides, so that we can work
together. We have worked together in the past, and we look
forward to a lot of this mirth and sharing, and hope it
translates into support for where we need it. Thank you,
gentlemen.
Allow me to now briefly introduce our Democratic Members on
the Subcommittee. First of all, to my left is Jim Costa of
Fresno, California. And Jim and I go back many years in the
California State Legislature. His knowledge of water issues is
very comprehensive and very well known, and this is his second
term on the Water and Power Subcommittee. Welcome, Jim.
Next we have Congressman Mark Udall of Boulder County,
Colorado. I was just in his backyard. Now in his fifth term in
the House, and whose special interest is the management of the
Colorado River Basin and the law of the river. We are pleased
to welcome Mark, who is especially distinguished on the
Democratic side of the Subcommittee because he is the only non-
Californian. Two Coloradans, OK, but on the Democratic side.
Next is Congressman Joe Baca from, they say Rialto, Joe. It
is San Bernardino, isn't it? San Bernardino County. We welcome
him back to the Subcommittee. He is now Chairman of the
Congressional Hispanic Caucus; also the Chair of the House
Subcommittee on Department Operations, Oversight, Nutrition,
and Forestry of the full Agriculture Committee. And I know as a
good friend, and especially concerned over the cleanup efforts
and protecting groundwater supplies from perchloric
contamination. Again, this will be one of the priorities of the
Subcommittee.
Next we have Dennis Cardoza, also from California, an old
friend from the days of, well, what can I say, Dennis? State
Legislature. A gentleman who has distinguished himself in a
state office, and has great concern for not only the farmers,
but for the whole State of California. And welcome, Dennis.
Cathy?
Mrs. McMorris Rodgers. Thank you, Madame Chairman. It is
indeed an honor to serve as the Ranking Republican on this
Subcommittee, and I look forward to working with you, Madame
Chairman, on a variety of issues that will come before this
Subcommittee.
I would like to introduce the colleagues on the Republican
side of the Subcommittee. First, Congressman Ken Calvert, no
stranger to this committee. Ken is from Corona, California;
represents the 44th Congressional District; was the illustrious
leader of this Subcommittee for four years. He also serves on
the Armed Services and Science Committees.
Should I introduce those that aren't here? Yes? Congressman
Dean Heller from Carson City, Nevada, represents the state's
Second Congressional District in Nevada. He has the
distinguished honor of serving for three terms as Nevada's
Secretary of State. He serves on the Small Business Committee,
as well.
Congressman Doug Lamborn represents Colorado's Fifth
District, and is from Colorado Springs. He served in the
Colorado Senate for 11 years. He also serves on the Veterans
Affairs Committee, and is on leave from the Armed Services
Committee.
In addition, we would like to welcome to this hearing
former Subcommittee Chairman George Radanovich--good morning,
glad you are here--and former committee Member Devin Nunes. We
are privileged to serve with these fine individuals. Each of
our states has our own pressing water and power issues, and we
look forward to providing our specific expertise to this
Subcommittee.
Mrs. Napolitano. Thank you, Mrs. Rodgers. I did not
introduce two people who are not here: George Miller, current
Chairperson of the Committee on Education and Labor. He was a
previous Chair not only of this Subcommittee, but was also
previous Chair of the full Committee on Natural Resources. And
his special interest is protecting water quality in the
Sacramento and San Joaquin Delta, which serves as a source of
drinking water for his district. And of course, we drink the
water from that area, too.
So we welcome George, as well as Hilda Solis from El Monte,
California, who serves as a Vice Chair of the Energy and
Commerce Committee, Environment and Hazardous Materials
Committee, a subcommittee dedicated to the cause of
environmental justice, and is a strong advocate of groundwater
remediation.
As we begin the work of the Subcommittee for the 110th
Congress, may I assure each and every one of you that I will do
my best in the Subcommittee to treat it with fairness and
respect for each and every Member. I have an open-door policy,
and all of you, Republican or Democrat, are welcome to contact
me or my Staff Director, Steve Lanich, to my left, at any time.
We will, I am sure, have partisan differences, but I assure you
that the work of the Subcommittee will be handled on a non-
partisan basis, as it has been for many years. And I intend to
continue that work to help solve water problems in the West. We
can accomplish much, but only if we set aside our partisan
differences.
Now I will move on to the subject of today's hearing. H.R.
24 was introduced on January 4 by Congressman George
Radanovich, of which I am an original co-sponsor. I have
supported the legislation; I intend to continue to support and
see its enactment. Other co-sponsors include Jim Costa, George
Miller, Dennis Cardoza, and Joe Baca.
The Subcommittee on Water and Power held an oversight
hearing of the San Joaquin Restoration, San Joaquin River
Restoration Settlement, on September 21, 2006. And at that
time, no legislation had been introduced to implement the
settlement. The recording of that hearing has been printed, and
is available as Serial Number 109-63. The legislation we will
consider today was prepared last September as a consensus
document following a series of meetings of the affected
parties, with not only Senator Diane Feinstein, but
Representatives Costa, Cardoza, Pombo, Radanovich, and Nunes.
The parties agreed to a number of provisions intended to
protect the identified third parties from unintended
consequences that might result as the legislation and the
actual restoration projects were implemented over the next 18
years or so. I do congratulate the settling parties, the third
parties, and the participants from this House, and most of all
California Senator Diane Feinstein, for all their hard work to
reach the agreement on the many complex issues presented by the
settlement.
I welcome our witnesses today, and I appreciate your
cooperation in helping us compile a complete and accurate
defensible record of consideration of H.R. 24. I would like to
note that two of our witnesses today, Mr. Candee and Mr.
Ishida, have submitted extra written material to the statements
they will make. These materials are quite lengthy, and for that
reason they have not been copied, nor included in the folders
placed in front of each Member. The documents are available
electronically, and all of these materials will be entered into
the record. If anyone needs to refer to them, please request a
copy, and we will be happy to provide it.
I am now pleased to yield to my friend from Spokane,
Ranking Minority Member of our Subcommittee, Congresswoman
Cathy McMorris Rodgers, for any statements or comments she may
make.
[The prepared statement of Mrs. Napolitano follows:]
Statement of The Honorable Grace F. Napolitano,
Chairwoman, Subcommittee on Water and Power
H.R. 24 was introduced on January 4, 2007 by Congressman George
Radanovich. I am an original co-sponsor of the bill. I support this
legislation and I will work hard for its enactment. Other co-sponsors
include Congressmen Jim Costa, George Miller, Dennis Cardoza, and Joe
Baca.
The Subcommittee on Water and Power held an oversight hearing on
the San Joaquin River Restoration Settlement on September 21, 2006. At
that time no legislation had been introduced to implement the
settlement. The record of that hearing has been printed and is
available as Serial Number 109-63.
The legislation we will consider today was prepared last September
as a consensus document following a series of meetings of the affected
parties with Senator Dianne Feinstein and Representatives Costa,
Cardoza, Pombo, Radanovich and Nunes. The parties agreed to a number of
provisions intended to protect the identified Third Parties from
unintended consequences that might result as the legislation and the
actual restoration projects are implemented over the next 18 years or
so. I congratulate the Settling Parties, the Third Parties, the
participants from the House, and especially Senator Feinstein for their
hard work to reach agreement on the many complex issues presented by
the Settlement.
I welcome our witnesses today, and I appreciate your cooperation in
helping us compile a complete and defensible record of our
consideration of H.R. 24. I want to note that two of our witnesses
today, Mr. Candee and Mr. Ishida, have submitted written material in
addition to the statements they will make. These materials are quite
lengthy, and for that reason they have not been copied and included in
the folders placed in front of each Member. If anyone needs to refer to
the materials, I have them here with me. We will be happy to print
copies for any of the Members who need a copy. The documents are also
available electronically. All of these materials will be entered into
the record.
______
STATEMENT OF THE HON. CATHY McMORRIS RODGERS, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. McMorris Rodgers. Again, thank you, Madame Chairman.
As we all know, many of the issues before this Subcommittee
cross party lines. Some matters enjoy bipartisan support,
others enjoy bipartisan opposition.
The Subcommittee, however, has a history of rolling up its
sleeves and getting things done together. We have many
important issues to tackle over the next two years. The stakes
are high, and we owe it to the citizens of this country to do
the very best.
I am encouraged, thus far. The distinguished Chairwoman
showed real leadership when she invited the Members of their
Subcommittee and their staff over for a wonderful breakfast two
weeks ago. I really enjoyed it. She is a great cook, and that
action says a lot. So I look forward to working with you,
Madame Chair, and all of our colleagues, on what I hope to be a
very inclusive and promising two years.
Now let me turn to the legislation. The San Joaquin River
Restoration Settlement Act, offered by our distinguished Former
Chair, George Radanovich, is a symbol of what people can
accomplish when they sit down and negotiate in good faith. The
battle over the San Joaquin River's future has raged for 18
long years, with little progress. Little has been done for the
farmer or the fish. But this bill attempts to reverse that and
take action out of our Federal courthouse.
As some of you may know, the Pacific Northwest has its own
endangered salmon problems. Salmon restoration is consumed by
endless litigation. A Federal judge is dictating how we use the
water, and some environmental extremists want to tear down dams
and undermine the promise of renewable and inexpensive
hydropower that FDR and LBJ gave to our region.
Over $800 million in Federal money has been spent each year
to restore salmon populations. Three out of every 10 dollars in
our electricity bills go toward salmon. In one instance, rate
payers spent over $3 million per fish, due to a judge's action
to mandate unnecessary spills.
Let us be clear. All of us in the region are
environmentalists. Everyone wants to see salmon survive and
succeed. But the most well-intentioned people argue over how we
measure progress and define success when it comes to recovering
our salmon.
With the salmon money meter still running, we are trying,
but not even close, to answering these questions. I am sure all
of you here today want to see salmon and river restoration
succeed on the San Joaquin. I hope that you have thought very
seriously about how success will be defined, what benchmarks
you will need to accomplish this goal, and how you will
mitigate the impacts on people and other endangered fish.
When this settlement can be reopened in 20 years and after
all this money is spent, I really hope that we have made
tangible progress on helping humans and fish. The last thing we
want is the California version of salmon wars on our doorsteps.
I again want to commend the sponsors of this bill and the
parties here today for attempting to resolve these delicate
matters. I look forward to today's testimony, and focusing on
the next steps of the legislative process.
[The prepared statement of Mrs. McMorris Rodgers follows:]
Statement of The Honorable Cathy McMorris Rodgers,
Ranking Republican, Subcommittee on Water and Power
It is indeed an honor to serve as the Ranking Republican on this
Subcommittee and a pleasure to serve with some of the best and
brightest this Congress has to offer.
As we all know, many of the issues before this Subcommittee cross
party lines. Some matters enjoy bipartisan support. Others enjoy
bipartisan opposition. This subcommittee has a history of rolling up
its sleeves and getting things done together.
We have many important issues to tackle over the next two years.
The stakes are high and we owe it to our constituents to do the very
best.
I'm encouraged thus far. The distinguished Chair showed real
leadership when she invited the Subcommittee members and their staff
over for a wonderful breakfast two weeks ago. That action says a lot.
So, I look forward to working with you, Madame Chair, and all our
colleagues on what I hope to be a very inclusive and promising two
years.
Now, let me turn to the legislation. The San Joaquin River
Restoration Settlement Act, offered by our distinguished former Chair,
George Radanovich, is a symbol of what people can accomplish when they
sit down to negotiate in good faith.
The battle over the San Joaquin River's future has raged for 18
long years with little progress. Little has been done for the farmer or
the fish, but this bill attempts to reverse that and take action out of
the federal courthouse.
As some of you may know, the Pacific Northwest has its own
endangered salmon problems. Salmon restoration is consumed by endless
litigation, a federal Judge is dictating how we use the river, and some
environmental extremists want to tear down dams and undermine the
promise of renewable and inexpensive hydropower that FDR and LBJ gave
to our region. Over $800 million in federal money has been spent each
year to restore salmon populations, 3 out of every 10 dollars in our
electricity bills go towards salmon and in one instance, ratepayers
spent $3.1 million per fish due to a Judge's action to mandate
unnecessary spills.
Let's be clear: all of us in the region are environmentalists.
Everyone wants to see salmon survive and succeed. But the most well-
intentioned people argue over how we measure progress and define
success when it comes to recovering our salmon. With the salmon money
meters still running, we are trying but not even close to answering
these questions.
I'm sure all of you here today want to see salmon and river
restoration succeed on the San Joaquin. I hope that you have thought
very seriously about how success will be defined, what benchmarks you
will need to accomplish this goal and how you will mitigate the impacts
on people and other endangered fish. When this settlement can be re-
opened in 20 years and after all this money is spent, I really hope
that you have made tangible progress on helping humans and fish. The
last thing you want is the California version of Salmon Wars on your
doorsteps.
I again want to commend the sponsors of this bill and the parties
here today for attempting to resolve these delicate matters. I look
forward to today's testimony and focusing on the next steps of the
legislative process.
______
Mrs. Napolitano. Thank you, Mrs. McMorris Rodgers. At this
point I will recognize Members who wish to make brief
statements. Any Member who decides to be heard will be heard,
and of course additional material may be submitted for the
record. We do have a full schedule, so I am asking that we try
to keep that to a minimum so that we can then hear from the
panels.
I will enforce the five-minute rule with our timer. Ladies
and gentlemen, it is right before you. As my former Chair
Radanovich used to say, green means go, yellow means speed up,
red means stop. So I am borrowing that from you, George.
I now recognize Congressman Costa for any statement he may
have.
STATEMENT OF THE HON. JIM COSTA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Costa. Thank you very much, Madame Chairperson. And I,
too, want to commend you and congratulate you on this
chairmanship. I know you are going to do a very able job, and I
look forward to working with all the Members on the
Subcommittee. So thank you for your efforts to start this off
in the proper fashion.
The hearing we are holding today, this morning, is, as been
mentioned, part of a long effort that many of us have been
involved with as it relates to not just water policy in
California, but specifically in the San Joaquin Valley.
As was noted, the lawsuit has extended for now over 18
years. And as any out-of-court settlement, there is always
aspects of a settlement that you like better than others. I
think this is no exception for me.
Nonetheless, what is important here is that we, after 18
years, have been able to find a way for parties to come
together and try to solve problems. And I think it is in that
spirit that we should look at the enabling legislation this
morning.
The fact is that the San Joaquin Valley, the eight-county
region, is the fastest-growing region in California, for a lot
of reasons, in terms of population growth, in terms of people
settling there, in terms of cost of living. It also is the
richest agricultural region in the entire United States, and,
for that matter, the world. And so there are a lot of
conflicting issues that relate to this water resolution and
this settlement.
It is also an area which has been ground zero on many of
the contentious water fights in California for decades, and
everyone here is well aware of that.
The fact is that to the degree that we can solve a problem
and take it off the table, it allows us to progress and to make
efforts to the long-term water needs of California, and to the
Valley. To that end, we are trying to put together a regional
water plan for the eight counties to look at our water supply
needs over the next 30 years, to look at our water quality
issues that we have to face. I know that the Chairman is very
focused on, to deal with environment restoration issues that we
need to focus on to continue to accommodate the growth, and to
be good stewards of the environment.
And finally, as was with this last spring, California has
either too much or too little. And last spring we had too much
water, and we had flooding. And we have concerns about not just
levees in the Delta, but levees in the San Joaquin Valley, as
well. So all of those four water-related issues are key, and
part and parcel of this settlement agreement that we talk about
this morning.
I will look forward to the testimony and to the questions
that I have, and to the responses as we work on this enabling
legislation. I noted in the discussions we had last September
that all the parties came together; that the Members who
represent those areas, as you noted, including Senator
Feinstein, worked very hard to try to see if we could put
together this enabling legislation.
And it is in that spirit that I approach the hearing here
this morning, realizing that, like anything else, there is
always room for improvement. Nonetheless, I am hopeful that we
will be able to move forward in a collegiate and bipartisan
fashion to solve this matter. And I want to thank you, Madame
Chairperson, again for your hard work and your focus in this
area.
Mrs. Napolitano. Thank you. Mrs. McMorris Rodgers.
Mrs. McMorris Rodgers. And now I turn to Mr. Radanovich.
STATEMENT OF THE HON. GEORGE RADANOVICH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Radanovich. I would love to make an opening statement.
Mrs. Napolitano. Very good.
Mr. Radanovich. Thank you. It is great to be back here.
Chairwoman Napolitano, congratulations. It is great to have a
fellow Californian as Chairman of this Subcommittee, and Mrs.
McMorris Rodgers, having you as Ranking Member is a good thing.
So I am glad to be here. I miss this committee. I am pretending
I am still on the committee, by the way, so I will be showing
up I think regularly.
But I did want to read a statement into the record
regarding this, because I think it is important for the San
Joaquin Valley. And I am so thankful that you are conducting
this hearing as one of the final steps in putting to rest an
18-year battle over the San Joaquin River.
I am eager to work with this committee to see it come to
its rightful conclusion. For 18 years a legal battle to restore
salmon fishing in the San Joaquin River has been waged in the
courts. Hard-working families who depend on the San Joaquin
River and the Friant Dam at Millerton Lake have been living
with the uncertainty of their water source.
In the meantime, many of us were aware that waiting for a
judicial decision could be costly to all parties, without
necessarily providing an amicable solution, and could linger
for years while being appealed to the Supreme Court.
For these reasons, Senator Diane Feinstein and I join
together to urge the parties to take their fight out of the
courtroom and back to the negotiating table. The Friant Water
Users Authority, the NRDC, and the U.S. Government and third
parties began negotiation in good faith, and hammered out what
we have before us here today.
The San Joaquin River Settlement would implement the terms
of the settlement, which strives to bring life to a dormant
river, while securing reliable water for fertile valley
farmlands which depend on the river for sustainability.
Now that much of the hard work has been done in California,
it is up to Congress to bring the settlement across the finish
line and provide necessary funding. The San Joaquin River
Restoration Settlement is the result of a collaborative effort
between all parties involved. By working in good faith
together, we have developed legislation to enact this historic
settlement and put an end to a long episode of California water
wars.
After last year's hearing on the San Joaquin River
Settlement, third-party concerns of the unintended consequences
of the settlement were addressed in the legislation, and in a
memorandum of understanding. As we have worked through the
issues that arise during this process, let us also keep in mind
that this will be a continual process.
I recognize that some of my colleagues have concerns with
the settlement, and every effort has, and will continue to be,
made to prevent those concerns from being realized.
I look forward to hearing more from witnesses today about
mitigating water losses and addressing this matter. I commend
the Friant Water Users Authority for developing the potential
water management programs and projects to recapture,
recirculate, and reuse water. There are also new opportunities
separate from this legislation being developed as we speak,
like the San Luis Drainage Proposal, which may provide more
options to help mitigate water losses to the friant water
users, and I look forward to exploring those opportunities.
I commend those who worked really very hard on this effort,
and I want to thank all the co-sponsors for their support of
this bill. Diligent efforts on behalf or by Kole Upton,
Chairman of the Friant Water Users Authority; Dan Dooley, a
Friant water attorney; and Hal Candee with the NRDC; and others
from the state and Federal governments helped achieve this
settlement.
Now Congress has the opportunity to enact this critical
legislation, and I say let us make it happen.
Thank you very much for the time, and for conducting this
hearing.
[The prepared statement of Mr. Radanovich follows:]
Statement of The Honorable George Radanovich, a Representative in
Congress from the State of California
Thank you, Chairwoman Napolitano, for holding this hearing on this
bipartisan bill H.R. 24, the San Joaquin River Restoration Settlement
Act. This hearing is one of the final steps in putting to rest an 18
year battle over the San Joaquin River. I am eager to work with this
Committee to see it come to its rightful conclusion.
For 18 years a legal battle to restore a salmon fishery on the San
Joaquin River has been waged in the courts. Hard working farm families
who depend on the San Joaquin River and the Friant Dam at Millerton
Lake have been living with the uncertainty of their water source. In
the mean time, many of us were aware that waiting for a judicial
decision could be costly to all parties, without necessarily providing
an amicable solution, and could linger for years while being appealed
to the Supreme Court.
For these reasons Senator Dianne Feinstein and I joined together to
urge the parties to take their fight out of the courtroom and back to
the negotiating table. The Friant Water Users Authority, NRDC, and the
U.S. government and third parties began negotiation in good faith and
hammered out what we have before us today. The San Joaquin River
Settlement Act would implement the terms of the settlement, which
strives to bring life to a dormant river, while securing reliable water
for fertile Valley farmlands which depend on the river for
sustainability.
Now that much of the hard work has been done in California, it's up
to Congress to bring the settlement across the finish line and provide
the necessary funding. The San Joaquin River Restoration Settlement is
the result of a collaborative effort between all parties involved. By
working in good faith together, we have developed legislation to enact
this historic settlement and put an end to a long episode of California
Water Wars.''
After last year's hearing on the San Joaquin River Settlement,
third party concerns of the unintended consequences of the settlement
were addressed in the legislation and in a Memorandum of Understanding.
As we have worked through issues that arise during this process let
us also keep in mind that this will be a continual process. I recognize
some of my colleagues have concerns with the settlement, and every
effort has and will continue to be made, to prevent those concerns from
being realized. I look forward to hearing more from the witnesses today
about mitigating water losses and addressing this matter. I commend the
Friant Water Users Authority for developing the potential water
management programs and projects to recapture, recirculate, and re-use
water. There are also new opportunities, separate from this
legislation, being developed as we speak, like the San Luis drainage
proposal, which may provide more options to help mitigate water losses
to the Friant Water Users, I look forward to exploring those
opportunities.''
I commend those who worked so hard on this effort and I thank all
the cosponsors for their support of this bill. Diligent efforts by Kole
Upton, Chairman of the Friant Water Users Authority, Dan Dooley, a
Friant Attorney, Hal Candee, with NRDC, and others from the state and
federal governments helped achieve the settlement. Now Congress has the
opportunity to enact this critical legislation. Let's make it happen.
______
Mrs. Napolitano. Thank you, Congressman. Congressman Udall.
STATEMENT OF THE HON. MARK UDALL, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF COLORADO
Mr. Udall. Thank you, Madame Chairman. I will be very
brief. I want to acknowledge your kind remarks about my service
on the Resources Committee, and just mention to the committee
Members that are here that I have a bill pending that hopefully
will be considered by the Subcommittee, dealing with the Platte
River. And the good news is that river flows to the east. At
this point, California has no stake in the water in that river.
[Laughter.]
Mrs. Napolitano. I will keep that in mind, sir.
Mr. Udall. Although the States of Wyoming and Nebraska are
also affected by the Platte River.
Thank you, Madame Chair.
Mrs. Napolitano. Thank you, sir. Mrs. McMorris Rodgers.
Mrs. McMorris Rodgers. Thank you, but not Washington State,
eh?
Representative Nunes.
STATEMENT OF THE HON. DEVIN NUNES, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Nunes. Thank you, Mrs. McMorris Rodgers, and
congratulations, Mrs. Napolitano, on your Chairmanship. I know
you have been to my district numerous times, and I thank you
for that. I remember when I was first elected, you actually
came out to my district and attended a field hearing in my
district. So thank you for that. So I know you are well aware
of these issues, and I am happy that you are the Chairwoman,
especially being a Californian.
I have a statement here that I am going to read part of,
and I will probably submit it for the record. But I want to be
extremely clear that I have always supported restoring the San
Joaquin River, despite the fact that I ask tough questions
about this settlement.
I remain committed to the restoration of the river; in
fact, folks in this room today may not remember, but I
campaigned on this issue. I pledged in my first run for office
to restore the river and bring water certainty to my
constituents. And I have never stopped working on this issue.
Indeed, it is a noble goal to bring back the mystic salmon
population that have been reported to be abundant in the river
over 70 years ago. Unfortunately, no one in this room can say
with any level of certainty that the legislation before us
today would accomplish this goal.
I expect to hear a lot of words like we expect, we hope,
and it is our goal; but what I do not expect to hear is that
there will be 100,000 fish in 20 years, or that Friant will be
able to recover all its lost water.
Why is that? Because we simply do not know. No feasibility
study has been done on what would be the largest and most
expensive river project the West has ever seen.
While I give the settling parties an A for their hard work
in negotiating the detailed specifics of restoring the river, I
give them an F in their attempts to provide any level of
certainty of recovering lost water. We will hear about goals;
but without concrete legislative language, goals can be
forgotten or even ignored, as we have seen in the past.
The parties to the settlement have come to Congress and
asked us to trust them, and have told us they have the best
interests in the Valley in mind. Again, while their thoughts
may be genuine, trust and faith do not hold any weight in the
court of law or in the court of public opinion. If it is not
codified in law, then it doesn't exist.
Today I expect to hear that third parties have been
consulted, and that their impacts have been addressed. While
this is partially true, other third parties, like cities and
counties in my district, were not consulted, nor were they
invited to the negotiating table. They have serious concerns
about the impacts on groundwater, and have already had a tough
time meeting EPA standards for water quality. Any loss of
surface water will only result in increased reliance on
groundwater. This situation will diminish water quality even
further.
In fact, I have received resolutions from every city
council in Tulare County, and both the Tulare County and Kern
County Board of Supervisors, all which clearly express concern
about the settlement and the need to have concrete mitigation
plans to recover water.
We are at a crossroads, and the economic and social future
of my constituents is at stake. We must have mitigation for the
groundwater impacts, and we must have a safety net for my
constituents in case the settling parties fail to live up to
their grand promises.
Again, thank you, Mrs. Napolitano, for the opportunity to
serve just one day on your committee, and I hope that you will
invite me back.
Mrs. Napolitano. Thank you. The Committee will if you
behave.
[Laughter.]
Mrs. Napolitano. Hey, I am very up front, my friend.
[Laughter.]
Mrs. Napolitano. Mr. Cardoza, Congressman Cardoza.
STATEMENT OF THE HON. DENNIS CARDOZA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Cardoza. Madame Chair, thank you very much. I
congratulate you on your chairmanship, and I assume the same
admonition that you gave to Mr. Nunes applies to me, as well. I
will take it in that spirit.
Although I miss serving on this committee, I know that we
will continue to work closely with you and your staff that work
on this proposal. And I truly appreciate the invitation to be
here today and participate.
Last fall, after 18 years of litigation, the Friant Water
Users Authority and the U.S. Bureau of Reclamation Natural
Resources Defense Council reached a settlement agreement to
restore the San Joaquin River. Although this historic agreement
resolved the lengthy and costly litigation issues that created
the atmosphere of uncertainty for the Friant Authority and for
the growers that rely upon Friant for their water supply, I
voice my concerns that this agreement would place burdens on
landowners, water and flood control districts, not a party to
this agreement.
After weeks of intense, and sometimes around-the-clock,
negotiations with representatives of all parties and my
colleagues, I am pleased to represent that we were able to come
to an agreement on language that would allow the settlement to
go forward, while at the same time protect the water rights and
property rights of those not a party to this litigation, with
certainly the caveat of the questions that Mr. Nunes has
raised.
H.R. 24, the San Joaquin River Restoration Settlement Act,
embodies this agreement. This legislation not only sets out a
course for the implementation of this historic agreement, but
it also resolves issues that are critical to my constituents in
California's 18th District. Without the protections contained
in this legislation, the settlement could result in significant
costs, in the hundreds of millions of dollars, for downstream
landowners and flood control operations; and also would have
the untold impacts on the water delivery system throughout
California. This legislation ensures that the release of
restoration flows down the San Joaquin River will not transfer
impacts to my constituents downstream.
Further, it requires that the settlement go forward with a
phased-in approach requiring the Bureau to conduct a
feasibility study on the issues of cost, impact, and mitigation
of various options to release the restoration flows.
I am pleased that the Bureau and many third parties
recently entered into a memorandum of understanding to
establish a process and structure for third parties to
coordinate with the Bureau on a list of issues of joint
concern. Under the MOU, the Bureau has committed to working
together and coordinating with third parties in planning and
designing and implementation of this settlement.
It is my understanding that the MOU has been finalized. And
with permission, Madame Chair, I would like to submit a copy of
the MOU into the record today.
Mrs. Napolitano. Without objection.
[NOTE: The Memorandum of Understanding submitted for the
record by The Honorable Dennis Cardoza, has been retained in
the Committee's official files.]
Mr. Cardoza. Last, I would like to stress that the
settlement agreement's two goals of restoration and water
management are equal goals. In order for this settlement to be
successful, it is critical to have the continued support of the
Friant water users. Meeting the water management goals of the
settlement with the Bureau developing an effective
recirculation plan with excess pumping capacity and recovered
water account to mitigate a substantial portion of the water
losses to the Friant district is the best path forward toward a
success. Successful implementation also dictates that funding
is provided to meet both of these goals.
I remain committed to continuing to work with my Valley
Congressional colleagues--with Senator Feinstein and yourself,
Madame Chair; with all the third parties--to ensure that this
legislation and the settlement agreement are implemented
consistent with these goals.
I thank you again, Madame Chair, for the opportunity.
Mrs. Napolitano. Thank you. Mrs. Rodgers.
Mrs. McMorris Rodgers. Thank you. Mr. Calvert.
Mr. Calvert. Thank you. I just want to congratulate Grace
F. Napolitano for becoming Chairman of the committee. I served
with her for four years as the Chairman, and she is going to
make a fine Chairman.
Mrs. Napolitano. Thank you.
Mr. Calvert. I congratulate you, and congratulations to
Mrs. McMorris Rodgers. And I look forward to working with you.
And may you have fun working these water battles.
[Laughter.]
Mr. Calvert. I miss the good old days of the west side, and
the east side, and the quantification agreement, and the
Colorado River.
Our friends from Colorado left. I just want them to know I
just flew over Colorado the other day. The mountains were
glistening with snow, and it is wonderful to look at our water
when it is white. But they left.
So thank you, and I look forward to working with you.
Mrs. Napolitano. Thank you, Ken. It is a pleasure having
you. And we did have a very, very fruitful four years; we
worked well together, as I did with George Radanovich. But
thank you for including me in many of the things that you did,
because I learned considerably. So we hope to be able to put
that to good use. Thank you, gentlemen.
With that, thank you, and we will proceed with the
witnesses. Sorry it took so long, but these are things that we
need to get out in the open so you understand how it works.
We will have the testimony on H.R. 24, the San Joaquin
River Restoration Settlement Act. Our first panel includes
representatives from the settling parties, the California
Department of Water Resources, the California State Assembly,
and of course we have Mr. Dan Dooley representing the Friant
Water Users Authority. Mr. Hamilton Candee representing the
Natural Resources Defense Council, and Mr. Jason Peltier from
the Department of the Interior, along with Ms. Nancy Saracino
from the California Department of Water Resources. And of
course, Hon. Lois Wolk from the California State Assembly.
Welcome to all of you, and we are looking forward to a very,
very fruitful hearing.
The Subcommittee will continue to utilize the same
procedure used in the last Congress, and that is to allow all
witnesses on the panel to present their testimony before we ask
questions. In other words, we will finish listening to them,
and then we will ask the questions.
Your prepared statements, ladies and gentlemen, will be
entered into the record, and all witnesses are asked to limit
their remarks to five minutes. Don't forget my talk up here.
If you wish to speak on salient points, since your
testimony is going to be in the record, please do so. We would
rather hear your personal passion on this.
We will begin with Mr. Dan Dooley. Your prepared statement,
again, is in the record. Proceed for five minutes, sir.
STATEMENT OF DANIEL M. DOOLEY, COUNSEL TO MEMBERS OF THE FRIANT
WATER USERS AUTHORITY, DOOLEY HERR & PELTZER, LLP
Mr. Dooley. Thank you, Madame Chair, and congratulations to
you on assuming the chair of the committee. It is a pleasure to
be here.
I am Dan Dooley. I am a partner of Dooley Herr & Peltzer, a
water law firm in Visalia and Sacramento. I am also a partner
in a farming operation with a former Member of this
Subcommittee. We farm in the area that is affected by this.
I was one of the principal negotiators of the settlement,
along with Kole Upton, who is the Chairman of the Friant Water
Users Authority. And I have with me----
Mrs. Napolitano. Move your mike up sir, please.
Mr. Dooley. Sorry.
Mrs. Napolitano. A little further, a little further, just a
little bit more. There you go.
Mr. Dooley. Also with me today is Ron Jacobsma, who is the
Consulting General Manager of the Friant Water Users Authority,
in case you ask questions that I am not capable of answering.
I do want to thank the committee for calling an early
hearing on H.R. 24. It is very important that this bill move
forward quickly, and we appreciate your support and interest in
doing that. I also want to thank Mr. Radanovich and Senator
Feinstein for giving the settling parties a strong push to
enter into settlement discussions.
I am not going to spend much time talking about the terms
of the settlement. We have briefed many of you in the past
about that, and it is included in our prepared statements.
I do want to talk a little bit about why the settling
parties, or why Friant entered into this settlement. And quite
candidly, it was not for the altruistic reason of restoring the
San Joaquin River.
We were facing, we were playing Russian roulette with a
judge who had a six-shooter fully loaded at our head, and the
alternative of going to litigation and trial on this matter was
very disturbing to us. We expected that we would lose far more
water than is included in the settlement. We would have far
less certainty than we have been able to provide in the
settlement, and we would have no opportunity through a judgment
in the court to pursue any water management policies that are
embodied in the settlement.
We knew this, because in August of 2004, the judge ruled
that the Bureau of Reclamation had violated a state law statute
that required the release of water from the dam for maintenance
and restoration of a fishery; and that we had a Valentine's
Day, 2006, trial date scheduled to determine how much water was
required to achieve that objective.
We had no expectation that we would prevail on appeal,
because the Ninth Circuit Court of Appeals had, in a prior
appeal ruling, ruled that 5937, which is a state law provision,
applied to Friant Dam; and therefore, we knew that the results
were not going to be good if we went to trial.
So we embarked on the settlement process, trying to achieve
certainty, both as to water supply and cost, and trying to
include in the settlement some provisions that would enable us
the opportunity to recapture some of the lost water supplies
that would be provided for restoration of the river.
And that was in lieu of the absolute havoc that we expected
would have resulted from a judgment issued by the Court, which
would have been subject to annual review by the judge, so that
he could adjust the amount of water that would be required to
be released for the fishery, and we would have absolutely no
certainty from year to year as to how much water would be
provided.
So the settlement, while it does require water to be
released from Friant Dam, and that water is water that has
previously been provided to farmers in the San Joaquin Valley,
it also preserves the vast majority of the water supplies of
the Friant Project for their historic use. That was our
objective to enter into this settlement agreement. We were
making a business judgment, quite candidly, that this
settlement is far superior to the alternative of going to
trial.
Now, I know, as you mentioned, Madame Chair, that since the
oversight hearing in September, a lot of progress has been made
with respect to addressing third-party interests. And those
protections have been embodied into the legislation. And I
think that is very helpful.
The Friant Water Users Authority has also spent
considerable time developing a water management plan. And this
has been provided to the committee. And I would request it be
included in the record. It demonstrates----
Mrs. Napolitano. Without objection, it is so ordered.
[NOTE: The water management plan ``San Joaquin River
Restoration Program: Water Management Goal...'' submitted for
the record by Mr. Dooley has been retained in the Committee's
official files.]
Mr. Dooley. Thank you. It demonstrates a number of projects
that, both from a recirculation point of view and from
individual district points of view, that the members of the
Friant Authority intend to undertake to mitigate the water
supply impacts. And I think it is the first comprehensive
effort to look at some of the activities that can be undertaken
to address some of the concerns that Mr. Nunes and others have
raised about potential water supply impact.
With that said, I think we believe that this is a
worthwhile settlement. We believe it is far superior to the
alternative. We believe that if this legislation doesn't pass,
we are back in the soup in the litigation again, and facing the
alternative of a much more havoc-wreaking alternative. And so
we encourage you to move this bill quickly, and we thank you
for your support.
[The prepared statement of Mr. Dooley follows:]
Statement of Daniel M. Dooley, Dooley Herr & Peltzer, LLP 1
---------------------------------------------------------------------------
\1\ DOOLEY HERR & PELTZER, LLP represent the Fresno Irrigation
District, Lewis Creek Water District, Lower Tule River Irrigation
District, Porterville Irrigation District, Saucelito Irrigation
District, Stone Corral Irrigation District, Tea Pot Dome Water
District, and Tulare Irrigation District, all of whom are long-term
Friant Division Central Valley Project water contractors. Additionally,
Dooley Herr & Peltzer, LLP represent the Hill's Valley Irrigation
District, Pixley Irrigation District, and the Tri-Valley Water
District, all of which are long-term Cross Valley Canal Central Valley
Project water contractors.
---------------------------------------------------------------------------
CHAIR NAPOLITANO, AND MEMBERS OF THE SUBCOMMITTEE:
It is an honor and privilege to appear before this Committee, and
to ask your support for legislation implementing a historic agreement
that resolves a long-standing conflict on the San Joaquin River. I am
Daniel M. Dooley, a partner in Dooley Herr & Peltzer, LLP. I serve as
general counsel for many of the irrigation and water districts that
compose the Friant Water Users Authority. Along with Kole Upton,
Chairman of the Friant Water Users Authority, I was a principal
negotiator of this historic Settlement of the 18 year old lawsuit known
as NRDC, et al. v. Rodgers, et al. Mr. Ron Jacobsma, Consulting General
Manager of the Friant Water Authority, is with me today, and will be
available to respond to any questions you may have regarding
implementation of the Settlement.
On September 13, 2006, the Friant Water Users Authority, Natural
Resources Defense Council and U.S. Department of the Interior
cooperatively reached what can only be termed a historic moment. As
representatives of Friant, the NRDC and its coalition, and the federal
government gathered at the federal courthouse in Sacramento, documents
were being electronically filed within the U.S. District Court of Judge
Lawrence K. Karlton to settle the San Joaquin River litigation that has
been so contentious, and which has placed such a dark cloud over
Friant's future, for the past 18 years.
My testimony today will focus on this Settlement and why it is good
for society as a whole and all the parties. I will discuss how this
carefully crafted Settlement provides a process to restore a river in a
manner that maintains a vibrant economy and society and how it offers
protection, in so many ways, for third parties who are downstream
stakeholders.
Most importantly, I will assert to you that this extraordinary
Settlement offers a positive and productive path forward into a future
in which all of us can use our resources and talents in a cooperative
effort rather than one that is wastefully devoted to continued
bickering and fighting. This Settlement may not be not perfect, but it
is by far the most practical option for each of the parties, and
particularly for the members of the Friant Water Users Authority and
the water users they serve.
I commend the legislators and policy makers--Federal, State, and
Local--who have done so much to reach this remarkable point in time. In
particular, Mr. Chairman, the settling parties and the people and
organizations we represent are grateful for the leading roles that the
former Chair, Mr. Radanovich and Senator Feinstein willingly took to
bring us back to the negotiating table and bridge our differences in a
way that has made it possible for all of us to embrace this Settlement
and its provisions.
As you may know, the Friant Water Users Authority consists of 22
member agencies that receive water from the Friant Division of the
Central Valley Project. The Friant service area consists of
approximately 15,000 mostly small family farms on nearly one million
acres of the most productive farmland in the nation along the southern
San Joaquin Valley's East Side. The Friant Division sustains
underground water supplies relied upon by residents, businesses and
industries in the cities within the Friant service area and delivers
surface water to cities and towns that include Fresno, Friant, Orange
Cove, Lindsay, Strathmore and Terra Bella.
The Friant interests were motivated to find a way to settle the
NRDC's lawsuit over the San Joaquin River because of our determination
to preserve the valley's way of life. Friant Dam and water delivered
through the Madera and Friant-Kern canals has always provided a great
deal of opportunity. For the past 18 years, the water supply of water
from Friant has been under a dark cloud. We have had every reason to
believe that those who farm and the communities that exist because of
Friant could end up losing all or a major portion of their water
through a judge's decision in the NRDC case or because of some other
challenge.
Such a possibility was and is unacceptable. Farmers cannot farm
without an adequate and affordable water supply. Further, farmers must
have some certainty before committing to plant a crop. As this case
began down a fast track toward trial to determine how much water was
required to restore the River, we were provided with an opportunity to
sit down and try again to reach a mutually agreeable settlement.
BACKGROUND
It goes without saying that this case has been seemingly endless,
frequently frustrating, incredibly challenging, internally complicated,
often controversial and always expensive.
It began in 1988 just as the U.S. Bureau of Reclamation was
beginning to renew Friant's long-term 40-year contracts. NRDC and its
coalition of environmental and fishing interests challenged the
government's decision to renew Friant water service contracts without
an Environmental Impact Statement. Of course, it didn't stay that
simple. NRDC's complaint was amended seven times over the next 15 years
to include other claims. One of those was a claim under the Endangered
Species Act, and still another that contended the operation of Friant
Dam was in violation of California Fish and Game Code Section 5937,
which requires dam operators to release sufficient water to keep fish
in good condition below the dam. Most of the earlier claims are no
longer relevant. But the river flow issue--the most crucial of all to
Friant users--came to be the litigation's focus over the past several
years, especially during an earlier four-year settlement effort that
was unfortunately not successful.
The case reached a crucial turning point in August 2004 when the
judge ruled Section 5937 imposes a continuing duty to release
sufficient water from Friant Dam into the San Joaquin River to restore
former historic salmon runs and fishery conditions. It assigned
liability to the Bureau of Reclamation. The court did not determine how
much water would be needed to satisfy the state law but set the case
for a trial that was to have started in February 2006 to determine the
``remedies''--the amount of the releases. In 2005, the parties began
preparing for that trial and in the process gained valuable new
scientific information from the expert reports prepared by our
respective trial witnesses about possible restoration strategies.
The Judge admonished the parties that the law did not permit him to
finely tune a solution in the way the parties could through a
negotiated settlement. The Judge's admonition resonated with the Friant
contractors. It seemed to say what many of us had long suspected--that
if the judge decided this case, there was going to be a great deal of
Friant water used as a ``remedy'' down the river. And without a
settlement, there wasn't going to be any of the extensive and
critically needed work done in the channel and to structures to provide
any sort of on-the-ground hope that salmon could be lured back by water
alone. The Judge would likely have retained jurisdiction to increase
water releases in order to accomplish the Restoration Goal. There was,
however, a strong likelihood that Friant's water users and the economic
and social structure in the San Joaquin Valley that depends upon this
water supply could very well be severely impacted.
That was the situation fall of 2005 when then Chairman Radanovich
and Senator Feinstein began a non-partisan effort to try to get Friant,
NRDC and the government to try again to negotiate a mutually agreeable
Settlement. It should be obvious that Mr. Radanovich and Mrs. Feinstein
were amazingly persuasive! They asked the parties to respect the
critical principles. The first was to respect the need for water supply
and financial certainty in the Friant community. The second was to
respect the need for certainty that the Restoration effort would
actually occur. The concept was a good old-fashioned compromise. This
is essentially how it was framed:
In exchange for restoring the San Joaquin River below Friant Dam,
Friant's new water dedication for the fishery's needs would be capped
at certain amounts based upon hydrologic conditions. That instantly
provided Friant water users with what had long been missing--a
declaration of water supply and quantity certainty for decades into the
future. We were well aware in taking this key compromise and filling in
the details that such an agreement would result in use of a portion of
the Friant Division water supply for Restoration Flows. And, yes, it
represents water that our already water-short area can't afford to
lose. Friant also recognized that the cap on water for Restoration
Flows would remove what promised to be years of continued uncertainty
over the Friant water supply that would result in socioeconomic
disruption of the eastern San Joaquin Valley.
Of equal importance to that certainty and the river's restoration
was development of the Settlement's unique means of using good,
innovative water management to provide means to recover, re-use and
recirculate water in an attempt to mitigate impacts on Friant water
users. Also of great importance to Friant was another crucial
compromise that capped Friant's financial contribution to river
restoration at present levels--which add up to tens of millions of
dollars each year paid into the CVP Improvement Act's Restoration Fund
and Friant Surcharge.
By April of 2006, the parties were able to inform Judge Karlton
that agreement had been achieved on numerous issues, including
restoration goals, water flows, ways of managing and recovering water
and a host of other issues. At the end of June, attorneys agreed to a
Settlement in principle and would recommend approval to each of the
constituencies.
THE SETTLEMENT AGREEMENT
The Settlement Agreement itself is constructed around two
important, parallel and, Friant believes, equal goals:
The Restoration Goal is to restore and maintain a self-
sustaining salmon population below Friant Dam to the confluence of the
Merced River.
The Water Management Goal is to reduce or avoid adverse
water supply impacts to all of the Friant Division long-term water
contractors.
THE RESTORATION GOAL includes three essential elements. Those
include:
A number of improvements providing for channel capacity,
related flood protection, fish passage and fish screening. These will
take place in two phases. By the end of 2013, projects to be completed
include a salmon bypass channel around Mendota Pool, increasing channel
capacity between the Eastside Bypass diversion and Mendota Pool to
4,500 cubic feet per second; increasing the channel capacity (in Reach
4B) below the Sand Slough control structure to 475 cfs; modifying the
Sand Slough control structure to provide for fish passage and
appropriate routing of water; screening the Arroyo Canal diversion; and
modifying Sack Dam and the Eastside and Mariposa Bypass channels for
fish passage and low flow conditions; and providing seasonal fish
barriers to screen fish at Salt and Mud Sloughs. The second phase
improvements are to be completed by the end of 2016. These include
increasing Reach 4B channel capacity below the Sand Slough control
structure to 4,500 cfs unless it is determined not to substantially
enhance achievement of the Restoration Goal; modifying the Eastside
Bypass diversion structure to provide appropriate fish screening and
passage; and isolating gravel pits near Fresno from the river.
Flow releases from Friant Dam, beginning in 2009 with
experimental interim flows and with full restoration flows beginning in
2014; with quantities determined according to hydrographs based upon
water year types in order to provide fishery habitat water. These
restoration flows may be supplemented by buffer flows of up to 10% and
can be further augmented with water purchases from willing sellers. If
construction of the river improvements is not completed, the Settlement
agreement contains default provisions designed to preserve water for
later use to achieve the Restoration Goal. Procedures are also
specified for flexible management of Restoration Flows to account for
temperature and biological factors. This adaptive management is to
avoid causing harm to other downstream fishery programs. The flow
schedule can't be modified until after December 31, 2026 and any change
would require a court filing and a referral to the State Water
Resources Control Board.
Reintroduction of salmon and other varieties of fish into
the upper San Joaquin River. The Fish and Wildlife Service is to apply
to the National Marine Fisheries Service for a permit to reintroduce
salmon and NMFS must decide on such application by April 30, 2012. Fall
and spring run salmon are to be reintroduced by the end of 2012.
THE WATER MANAGEMENT GOAL and its implementation embrace two
critical elements. They include:
Development and implementation of a plan to recirculate,
recapture, reuse, exchange, or transfer water released for Restoration
Flows within bounds of the Settlement's terms and all applicable laws,
agreements and environmental policies.
Creation of a Recovered Water Account that provides an
opportunity for Friant Division long-term contractors to recover water
they have lost to Restoration Flows at a reduced water rate in wet
water conditions. Friant Division long-term contractors providing water
for Restoration Flows will be able to purchase water for $10 an acre
foot during certain wet conditions when water is available that is not
necessary to meet contractual obligations or Restoration Flows. This
provision is designed to increase water banking and management programs
and boost incentives for districts to actively participate while
reducing the Settlement's water supply impacts.
SOME OF THE SETTLEMENT'S OTHER FEATURES include and address:
State of California Participation: This contemplates that
the State will of necessity participate in implementing many
provisions. A memorandum of understanding has been negotiated with
various State agencies. It specifies how Friant, the NRDC coalition,
federal government and the State will integrate implementation
activities. The State has expressed a desire for its Resources Agencies
to be actively involved. We expect the State to provide technical and
funding resources. Specific agreements will be negotiated with the
State regarding specific Settlement actions. It should also be noted
that Proposition 84 was approved by the California voters in November
of 2006 and includes $100 million for San Joaquin River restoration.
Funding: There are very specific provisions related to
Settlement funding, including provisions relating to the character of
the capital investment, limitations on Friant Division long-term
contractor payments, identification of existing funding resources and
additional appropriations authorization. The Settlement provides that
costs will not add to CVP capital obligations. It also commits Friant
Division long-term water contractors to continue paying the CVPIA
Restoration Charge and Friant Surcharge for the life of the Settlement
but caps Friant's obligations at those amounts. The Friant Surcharge
would be dedicated to implementing the settlement, as would Friant's
capital repayment portion of CVP water rate payments. Up to $2 million
annually of the Friant CVPIA Restoration Charge payments will be made
available for implementing the Settlement. In addition, the Settlement
authorizes appropriations authority for implementation totaling $250
million. (Some of these identified sources of funding are not subject
to the appropriations ceiling or to annual appropriations and may not
be subject to scoring for budget allocation purposes.) State funding
from various revenue streams, including state bond measures, are
anticipated. Funding identified in the Settlement is to be available to
implement the Water Management Goal as well as the Restoration Goal.
Other Claims Resolved: The Settlement resolves all claims
pending in the existing litigation, including those challenging the
validity of the Friant Division long-term renewal contracts. The
exception is attorneys' fees and costs.
Third Party Impacts And Participation: There has been a
great deal of concern voiced about third party impacts. All of us
clearly understand and the Settlement acknowledges that implementation
will require a series of agreements with agencies, entities and
individuals who are not parties to the litigation. The Interior
Department is to coordinate with interested third parties (including
third parties who own or control lands or facilities affected by
Settlement implementation), and for public participation in Settlement
implementation. Provisions of the MOU with the State contemplate joint
efforts to provide mechanisms for non-party participation in Settlement
implementation. Further, and as a result of a series of intense
negotiations last September, a number of changes and additions were
agreed to the legislation before you today that resolved most of the
third party concerns. All participating in those discussions have
signed a pledge that as a result of the changes, they will support the
Settlement and the legislation and oppose changes that are not agreed
to by all of the parties.
Management And Administration: A Restoration
Administrator position is to be established to help implement the
agreement and advise the Interior Department on how the river
restoration hydrographs are to be implemented, when buffer flows may be
needed, river channel and fish passage improvements, reintroduction of
salmon, interim flows for data collection purposes, targets, goals and
milestones for successful implementation of the fishery program and
coordination of flows with downstream tributary fishery efforts.
Appointment will be for a six-year term. A Technical Advisory Committee
will be created to advise the Restoration Administrator. It will
include two representatives each from the plaintiffs' coalition and
Friant defendants as well as two members mutually agreed upon, but none
are to be federal employees. Terms are to be for three years.
Long-Term Friant Water Service Contract Amendments: When
the Friant Division's long-term renewal contracts were enacted in 2001,
they included a stipulation requiring necessary contract amendments to
reflect and be consistent with any Settlement agreement. Such a
provision is part of the Settlement. Friant's long-term contracts will
be kept in place with no further National Environmental Policy Act or
Endangered Species Act compliance actions required.
Resolution of Disputes: Procedures are included for
attempting to resolve disputes by meeting and conferring. Should that
be unsuccessful, services of a neutral third party are to be used.
Finally, the parties could turn to the U.S. District Court.
FEDERAL LEGISLATION
This issue is before the Subcommittee because some Interior
Department actions called for in the Settlement require Congressional
authority. As you have seen, an exhibit to the agreement contains
legislative language proposed to implement the Settlement. It is
referred to as the ``San Joaquin River Settlement Act.'' Passage of
this legislation in substantially the same form as has been introduced
is critical because any party could void the Settlement if the
necessary legislation were not enacted on a timely basis. Further,
State of California funds will be available to implement the Settlement
on July 1, 2007. Enactment of this legislation is critical to
effectively utilize the State funds and to keep implementation of the
Settlement on the admittedly aggressive schedule agreed to by the
parties.
MITIGATION WATER SUPPLY IMPACTS
The Friant Water Users have carefully evaluated the water supply
delivery impacts of restoring Restoration Flows to the San Joaquin
River. In addition to flood flows and surplus water supplies, Friant
estimates the average annual impacts to historic water deliveries to be
approximately 170,000 acre feet. Unmitigated, this annual impact would
have significant adverse impacts on the Friant service area and the
communities existing therein. These potential impacts are of concern to
the Friant Contractors and many community interests along the eastern
side of the southern San Joaquin Valley.
The Friant Water Users Authority and its member districts have
undertaken to prepare a report that identifies a number of specific
programs and projects that could be undertaken to substantially, if not
completely, mitigate the water supply impacts. Some of provisions of
the report identify options for recirculation, recapture and reuse of
water that should be considered by the Secretary of Interior when
developing the plan required by Paragraph 16 of the Settlement. Other
provisions identify activities that the Friant Water Users Authority
and its members are considering to further reduce the direct water
supply impacts resulting from the initiation of Restoration Flows as
well as the indirect impacts on the communities in the Friant service
area. These programs and projects include, but are not limited to:
Projects and programs that should be considered by the
Secretary in developing the plan for recirculation, recapture and reuse
of Restoration Flows that is required by the Settlement and the
legislation;
Rehabilitation and enhancement of Friant Division
conveyance facilities to permit greater utilization of surplus River
water to maximize the effectiveness of integrated regional and district
programs and projects;
Integrated regional management projects and programs that
create improved integrated water management activities between
districts and among groups of districts; and
Improved district groundwater banking, conveyance,
distribution and water management programs and facilities.
I offer a report that summarizes these programs and projects and
includes a detailed exhibit for inclusion into the record of this
hearing.
CONCLUSION
Settlement of the 18-year-old litigation known as NRDC v. Rodgers
has been rightly applauded in much of the nation's press as an
outstanding achievement. The Friant Water Users Authority and its
member agencies appreciate that sentiment and view the Settlement as
historic, and the beginning of a new era in which the policies and
activities of the past are blended with society's environmental
priorities of the present and future. This Settlement has been
constructed upon a newfound willingness among the settling parties to
cooperate and compromise for the common good, and to the benefit of
each of our positions.
In addition to society's general interest in the San Joaquin River,
there are three interest groups lobbying Congress on the legislation
proposed for implementing this Settlement. These parties include:
The environmentalists interested in restoring flows and
salmon to the San Joaquin River.
The San Joaquin Valley folks who are dependent on San
Joaquin River water for sustaining their livelihoods and homes within
the Friant Division.
The third party interests who do not want the
implementation of the Settlement to cause material adverse impacts to
their constituents.
I submit to you that, collectively and individually, all these
interests and society itself will be far better served by this
Settlement than by Congress rejecting it. Of course not everyone is
fully satisfied, from either the environmental coalition or the water
users community:
Some in the environmental community may wonder why they
should settle with caps on Friant's costs and water releases when they
have won so convincingly to date in Judge Karlton's Court. The answer
for them is that this Settlement offers a process and constructive
opportunity of cooperation for salmon restoration. With a court
judgment, the attitude and approach by the valley folks would be
predominantly one of perpetual resistance, and an emphasis on how to
save as much water as possible. Under that scenario, water would nearly
certainly be released upon orders of a federal judge, but the necessary
improvements and cooperative nature essential to an effective salmon
recovery would be entirely missing. And, if it were ever to be
achieved, if would be accomplished only be after a much longer time
with far greater amounts of water.
Some water users interests may feel that this Settlement
makes no sense because, they reason, Congress six decades ago agreed to
make the Friant project a reality and decided to make it work by drying
up 60 miles of the San Joaquin River. Valley folks may also feel a
federal judge should not have the power to overturn such a decision
made long ago, and subsequently reaffirmed, by Congress. There is a
misperception by some that an unfavorable ruling to valley water users
and agencies would be a strong candidate for being reversed on appeal
to the Ninth Circuit or the Supreme Court. Unfortunately, Friant has
already been down that road once with this judge's decisions, including
that our contracts should be voided and that California Fish and Game
Code Section 5937 should apply to Friant Dam. His ruling was upheld by
the Ninth Circuit and the Supreme Court would not take the case.
The Third Party interests have sought protection and
indemnification against unfair water and fiscal costs they assert the
Settlement would be inflict upon their constituents. We have addressed
their concerns in the legislation before you. It is important to
understand that rejection of the Settlement and proceeding to trial
would not provide the third parties any of the protections contained in
the Settlement and legislation.
This Settlement, and the legislation before you, is the product of
literally thousands of hours or arduous negotiation and analysis. All
parties to the litigation, and third parties who expressed concerns
about the Settlement originally, have committed enormous good faith
efforts to structure an agreement that fairly and acceptably balances
all of the varied interests. Incredibly, we found such a balance. I
believe this Settlement sets forth a model for resolving complex water
resource disputes. The last piece is enactment of H.R. 24. I request
that this Committee move this Bill as quickly as possible so that the
parties can fully move forward to the challenging task of implementing
this historic restoration program.
Thank you.
______
Response to questions submitted for the record by the
Friant Water Users Authority
Submitted by Mr. Nunes (CA) to all witnesses:
If all of the other parties involved in the negotiations concerning
the form of H.R. 24 were to agree, would your organization support an
amendment of H.R. 24 authorizing the construction of pumping and
conveyance facilities required to implement the recirculation,
recapture, and reuse elements of the Water Management Goal of the
Settlement?
Response:
At the completion of negotiations on H.R. 24 in Senator Feinstein's
Office on September 27, 2006, Friant signed a pledge (with all of the
other Settling Parties and many third parties) not to support
amendments to the legislation unless such amendments were agreed to by
all of the other signatories. Friant will consider any amendments
offered to H.R. 24 and confer with the other signatories to the
September 27, 2006 pledge and only support any such amendments if the
other signatories agree. Friant certainly has a critical interest in
making sure the Water Management provisions of the Settlement are fully
implemented.
Submitted by Chairwoman Napolitano to the Settling Parties:
Restoration of Salmon Fisheries
1. What was the value of the San Joaquin Chinook salmon fishery
(sport and commercial) prior to extirpation of the species, in then-
current, and in 2007 dollars?
Response:
In conjunction with the water rights hearing that led to the
California State Water Rights Board's decision No. 935 in 1959, the
California Department of Fish and Game submitted evidence of the value
of California's commercial salmon fishery. Friant has no knowledge of
that amount being converted into 2007 dollars. Friant has no knowledge
of any effort to assign a monetary value specific to the salmon fishery
of the San Joaquin River.
2. The Settlement Agreement calls for restoring fall and spring
runs of Chinook salmon, yet Sec. 10 of H.R. 24 only addresses
restoration of spring-run Chinook. Will the fact that the bill does not
directly address restoration of fall Chinook salmon affect
reintroduction of fall Chinook as called for in the Settlement? Has a
decision been made that it is infeasible to restore both spring-run and
fall-run Chinook salmon, as provided for in settlements paragraph
14(a)? If so, please explain the basis for this decision.
Response:
The provisions of Sec. 10 of H.R. 24 do not address fall-run
Chinook salmon because the species already exists on the lower San
Joaquin River and tributaries thereto, and the species is not currently
listed under Sec. 4 of the Endangered Species Act. Thus, all of the
parties, including the downstream tributary interests did not feel it
necessary to include protections for such species. The Settlement
provides for the reintroduction of fall-run as well as spring-run
Chinook salmon. The Settling Parties acknowledge that the spring-run
was the dominant species on the upper San Joaquin River for a variety
of biological reasons. Consequently, the hydrographs that are the
foundation of the Settlement are principally designed to meet the needs
of spring-run.
3. The report that would assess the success of the reintroduction
of salmon is to be made no later than December 31, 2024, under H.R. 24.
Why is the deadline 12 years after the expected introduction of the
experimental population in 2012? Will there be other reports or
monitoring that will gauge progress sooner or on a regular basis?
Response:
The date of the report required by Sec. 10 of H.R. 24 was chosen,
in part, so that Congress would be informed of the progress of the
experimental population prior to the end of the protections provided to
third parties that are included in the provisions of Sec. 10. There are
other provisions of the Settlement, the Memorandum of Understanding
with the State of California and the Memorandum of Understanding with
third parties that provide for constant monitoring of the progress of
implementation of the Restoration and Water Management Goals. Twelve
years was selected as the time period because Central Valley spring-run
Chinook salmon generally mature and return to spawn when they are 3-4
years old, so twelve years provides an opportunity to examine the
success of the experimental population through about three generations
of fish.
4. In the 1992 Central Valley Project Improvement Act, Congress
directed the Secretary of the Interior to develop a program to ensure
sustainable anadromous fish populations double their average from 1967-
1991 in 10 years; however, after 15 years, this goal has not been
achieved. Given the difficulty in meeting the obligations set out in
1992, how long will it take to restore to ``good condition'' an
extirpated species?
Response:
Friant is not aware of all of the reasons the doubling goal of the
Central Valley Improvement Act has not been achieved. The reason is
surely a function of many factors. In the case of restoration of a
fishery to the San Joaquin River, the Settling Parties agree on the
physical work necessary to restore the River. The Settling Parties have
agreed upon Restoration Flow hydrographs and how those flows will be
administered. Further, the Settling Parties have agreed upon a
timeframe (concluding in 2026) that should allow sufficient generations
of salmon to return to the San Joaquin River to evaluate the
effectiveness of the Restoration effort. All of the parties acknowledge
that the undertaking is significant and its success will be affected by
a number of factors.
5. What other fish and wildlife species will benefit from this
restoration effort? Do they include other listed or candidate species
on federal or state endangered species lists?
Response:
There are a number of plant and animal species that will benefit
from reintroduction of flows and reestablishment of riparian habitat
along the San Joaquin River. Friant is not aware of all of the
particular listed or candidate species that might benefit from
implementation of the Settlement, though it is anticipated that the re-
establishment of a riparian vegetation corridor would benefit listed
species which typically inhabit such areas in California's Central
Valley, such as the Giant Garter Snake and the Valley Elderberry
Longhorn Beetle. As a part of the early planning and design process for
implementation of the Settlement, surveys will be performed that will
identify species that exist in the area of the Restoration effort.
6. What recreation benefits might be realized from these
restoration activities?
Response:
The Restoration of the San Joaquin River will provide many
aesthetic benefits and will likely create opportunities for
recreational benefits. Such opportunities must be balanced with the
property rights of adjacent landowners along the restored river.
Experimental Populations Under the Endangered Species Act
1. Would any reintroduction of spring-run salmon to the San
Joaquin River be outside the current range and wholly separate from
nonexperimental populations of this species?
Response:
Friant understands that there are no spring-run on the San Joaquin
River or tributaries thereto presently. Thus, reintroduced spring-run
on the San Joaquin River would be wholly separate from existing
populations on the Sacramento River and its tributaries. Of course, out
migrating adults from the experimental population and existing
populations on the Sacramento River and its tributaries will both
proceed to the ocean via the Sacramento-San Joaquin Delta and San
Francisco Bay.
2. Section Sec. 10(b) of H.R. 24 makes the reintroduction of
spring-run Chinook salmon dependent upon a discretionary finding by the
Secretary that such a permit can be issued. What are the guarantees
that the reintroduction will be allowed to proceed under this approach,
or if it is allowed to proceed, that it will not be legally
challengeable under a strict reading and interpretation of Sec. 10(j)
of the ESA?
Response:
The provisions of the Settlement explicitly state that the
Settlement will be implemented in accordance with all applicable laws
including, but not limited to, the Endangered Species Act. Thus, the
Settlement is careful not to limit discretion of the Secretary of
Commerce under provisions of the Endangered Species Act. Consequently,
there are no guarantees that the Secretary will issue the permit as
contemplated by Sec. 10 of H.R. 24. Having said this, it is important
to note that both the National Marine Fisheries Service and the Fish
and Wildlife Service are parties to the Settlement and participated in
negotiating the provisions of Sec. 10 of H.R. 24. They have advised
Friant, the other Settling Parties and the third parties that use of
Sec. 10(j) of the ESA and adoption of a Sec. 4(d) rule is precisely the
mechanism they would utilize for reintroduction of spring-run on the
San Joaquin River. Clearly, the exercise of discretion under these
provisions must be supported by sound science in order to avoid a
sustainable challenge.
3. How will the introduced population be determined a success or
failure? What if the experimental population of salmon does not
succeed? Will this affect the terms of the Settlement? Will there be
changes in the restoration flows or water management activities?
Response:
Provisions of Exhibit D to the Settlement provide a procedure by
which the Technical Advisory Committee, the Restoration Administrator
and the Secretary of Interior will develop interim and long-term
targets and metrics to measure the effectiveness of the Restoration
program. Additionally, the Bureau of Reclamation has already
established a project implementation team that includes other state and
federal agencies. This team includes a technical group working on the
fishery management portions of the Settlement. The Settling Parties
have acknowledged in the Settlement itself that, notwithstanding their
best efforts, the effort may not succeed. Pursuant to the procedure
included in the Settlement, any Settling Party may seek to modify the
Restoration Flows after December 31, 2025. Prior to that time, there
can be no changes to the required releases for the Restoration program.
There are no provisions in the Settlement for modification of the water
management provisions of the Settlement.
4. Section 10(b) of H.R. 24 directs the Secretary to reintroduce
spring-run Chinook salmon pursuant to ESA Sec. 10j and the Settlement.
What potential conflicts exist between these prescriptions for
introducing salmon and how will they be resolved?
Response:
Friant does not believe there are substantial conflicts between the
Settlement and H.R. 24. However, to the extent that there are any
conflicts between the Settlement and H.R. 24 with respect to issues
such as the method of achieving ESA compliance for the reintroduced
species, H.R. 24 is more recent and reflects the agreement reached
amongst all of the negotiating parties, and it should therefore
control.
5. The San Joaquin River supported spring and fall-run Chinook
salmon in the southernmost part of their historical range. Could
factors such as climate change or natural migration make it unlikely
for salmon to exist in the San Joaquin River when experimental
populations are assessed in 2024?
Response:
It is possible that these factors could affect the potential of
success of the reintroduction. Friant has no specific information that
enables it to conclude that these are relevant factors affecting
success or not.
6. If the experimental population of Chinook salmon were
determined to be essential, and critical habitat designated, will this
modify federal water management activities on the San Joaquin River?
Will third parties be affected?
Response:
Friant understands that the determination of nonessential relates
to whether taking of ``brood'' stock from the spring-run populations
existing on the Sacramento River and tributaries thereto will likely
affect their survival in those watersheds. A similar determination must
be made about whether the introduction of an experimental population on
the San Joaquin River will affect the survival of the existing runs on
the Sacramento River and its tributaries. Assuming it is found not to
affect the survival of the spring-run on the Sacramento and tributaries
thereto, Friant does not believe the presence of an experimental
population of spring-run on the San Joaquin would result in a critical
habitat designation on the San Joaquin. Thus, except as provided in the
Settlement, the presence of an experimental population will not affect
water management activities on the San Joaquin or adversely affect
third parties.
7. Section 4(d) of ESA authorizes the Secretary to prepare
regulations to provide for the conservation of threatened species. Has
the National Marine Fisheries Service (NMFS) or Fish and Wildlife
Service (FWS) ever been directed by Congress to issue a 4(d) rule under
ESA for an experimental population?
Response:
Friant has no knowledge with which to answer this question.
Submitted by Mr. Radanovich (CA):
1. In his testimony to the Water & Power Subcommittee of the House
Resources Committee on March 1, 2007, Allen Ishida, Chair of the Tulare
County Board of Supervisors, asked that two studies be introduced into
the Record. The first such study was prepared by Northwest Economics
Associates and the second by the University of California. His
testimony stated that the studies concluded that ground water levels
would nearly double in depth and pumping costs significantly increase
as a result of water releases required by the Settlement. Please answer
the following:
a. Are you familiar with these studies?
Response:
Yes.
b. Do you know the date each of the studies was prepared?
Response:
The University of California at Berkeley (UC) report was prepared
in 1996. The second report was prepared by Northwest Economic
Associates (NEA) in 1997 and was a re-examination of the Central Valley
Production model used by UC.
c. Were the water releases contemplated by these studies the
same as those required by the Settlement that is the subject of
H.R. 24? If not, what assumptions regarding water releases did
the studies assume?
Response:
No, the studies did not contemplate the Restoration Flows
contemplated by the Settlement. The UC report modeled the impacts of
two water supply reduction scenarios, one equaling 200 thousand acre-
feet (TAF) per year and one equaling 500 TAF per year. The NEA study
estimated the results of the same two water supply reduction scenarios,
but the NEA study modified the groundwater modeling and simulated 20
years rather than 10. The water supply reductions modeled by the UC and
NEA reports are not the same as the water releases called for in the
Settlement, which provides for restoration flows that will vary
depending on the type of hydrologic conditions in that water year.
d. Are you aware if any subsequent studies have been prepared
based upon updated information? If so, when?
Response:
Yes. In conjunction with the litigation that ultimately gave rise
to this settlement, one of the authors of the NEA report, Dr. Robert
McKusick, prepared a report that specifically analyzes the economic
impacts associated with the hydrographs that are incorporated into the
settlement. This report was prepared in September 2005.
Unlike the other two studies, Dr. McKusick's September 2005 report
was based on a new model developed to allow analysis of water supply
impacts at a more disaggregate level than the Central Valley Production
Model which had been used for the UC and NEA reports. This new model,
the Friant Division Production Model (FDPM), was constructed and
calibrated based on current agricultural conditions and San Joaquin
River releases. Among other things, Dr. McKusick and his staff surveyed
Friant water managers and water users about their current water demands
and supplies and their anticipated reactions to water losses associated
with the proposed river restoration flows.
e. If you are aware of more recent studies, can you explain
what different assumptions were utilized by the more recent
studies?
Response:
While all of the studies anticipated that some of the lost Friant
water would be replaced by increased groundwater pumping, the UC
report's assumptions related to groundwater hydrology and pumping cost
equations were rough. Those assumptions were refined in the NEA study
and further refined with the development of Dr. McKusick's September
2005 report, which was premised on extensive, current data on
groundwater conditions in the Friant service area collected by Dr.
Charles Burt, Richard Moss, and Dr. Kenneth Schmidt. (Dr. Burt, Mr.
Moss and Dr. Schmidt all submitted reports in September 2005 related to
the impact of the river restoration flows on various aspects of
groundwater conditions within the Friant Service Area.)
Furthermore, because the prior studies relied on the Central Valley
Production Model, the UC and NEA reports treated the Friant Division as
a whole and did not allow for local variations in cropping rotations,
soils, water sources and quality, financial solvency, and other issues.
In contrast, the Friant Division Production Model recognizes the
differences between the 23 Friant Division agricultural contractors.
The FDPM classified the Friant Division contractors into eight zones
based on availability of other surface water supplies, groundwater
availability and depth, cropping pattern, and geographic proximity. The
FDPM assumes that agricultural producers facing a change in irrigation
water supplies may change cropping patterns, reduce irrigated acreage,
or adopt different irrigation technologies. The FDPM also assumes that
farmers may reduce water application rates (thereby reducing yields),
unlike the constant yields assumed in the CVPM.
f. If you are aware of more recent studies, can you explain
what different conclusions were reached by the more recent
studies?
Response:
Dr. McKusick's September 2005 report indicates that, if the
restoration flows are implemented without modification of project
operations or any recovery of lost supplies, by 2025, crop acreage in
the Friant service area would decline by 51,320 acres, or six (6)
percent of existing acreage. Farm value of output would fall by $159.3
million per year, causing regional declines of $264.9 million in annual
output, $80.7 million in annual personal income, and a loss of 3,070
jobs. Reduced agricultural acreage would have spin-off impacts
throughout and beyond the service area and would impact many
industries, including agriculturally-related, retail, transportation,
real estate, health, and financial services. The magnitude of these
numbers highlights the importance of water supplies to the economy of
California's Central Valley and emphasizes the need for effective
implementation of the Settlement's Water Management Programs.
2. Are you aware of other independent studies that have been
prepared that analyzing the impact of the water releases required by
the Settlement on groundwater conditions or the economy of Tulare
County? If so, what are the studies and what did they conclude?
Response:
The impact of the water releases required by the Settlement on
groundwater conditions in the Friant service area was analyzed in three
expert reports prepared by Richard Moss, Charles Burt, and Kenneth
Schmidt, all of which are dated September 2005. Other than Dr.
McKusick's September 2005 report, Friant is not aware of any studies
that analyze the potential economic impacts to Tulare County associated
with the water releases incorporated into the settlement.
3. Mr. Ishida's written testimony makes reference to a new well
drilled by the City of Lindsay nearly 3 miles outside of the City
limits. You stated that the distance outside of the City limits was
related to salinity and nitrate water quality issues. Are you aware of
what caused the salinity and nitrate problems necessitating the
drilling of a well so far outside of the City limits?
Response:
Friant understands that groundwater contamination in and around the
City of Lindsay is a result of the historic operation of a large olive
processing facility in the City. While the plant is now closed, its
historic operation apparently caused significant salinity and nitrate
contamination affecting the City's municipal water system. The problem
is not related to declining groundwater conditions.
4. What actions has Friant to inform local agencies and landowners
about the terms and conditions of the Settlement?
Response:
Friant has undertaken a significant effort to inform local
interests and landowners about the Settlement and the alternative of
proceeding with the litigation. Attached is a spreadsheet that details
the organized activities of the Authority. In addition, individual
member water and irrigation districts also did considerable outreach,
including, but not limited to, landowner meetings and production and
distribution of a DVD explaining the Settlement. Further, there were
monthly articles in the Friant Waterline (circulation of 5,500) that
detailed the terms and conditions of the Settlement.
______
Mrs. Napolitano. Thank you. We will next hear from Hamilton
Candee, Attorney for the Natural Resources Defense Council in
San Francisco. Sir.
STATEMENT OF HAMILTON CANDEE, SENIOR ATTORNEY, CO-DIRECTOR,
WESTERN WATER PROJECT, NATURAL RESOURCES DEFENSE COUNCIL
Mr. Candee. Thank you very much. Thank you, Madame
Chairwoman and Members of the Subcommittee. It is a wonderful
opportunity to be back here to testify once again about
restoration of the San Joaquin River.
My name is Hamilton Candee. I am an attorney, senior
attorney with the NRDC, and Co-Director of the NRDC Western
Water Project. I appreciate the opportunity to speak today in
strong support of the historic settlement in NRDC v. Rogers,
and the pending legislation to authorize and approve the
settlement, H.R. 24.
For the past 18 years I have been a counsel of record in
this case, representing a coalition of 14 environmental and
fishing groups, which in turn represent over two million people
nationwide, and more than 250,000 Californians.
Madame Chairwoman, you have emphasized recently, as
recently as yesterday in a very nice event that I had the
opportunity to attend, that it is very important to you and to
this Subcommittee that people try to solve water problems
through partnerships. And in particular, those partnerships be
partnerships that will benefit people.
And I am very pleased, therefore, to be here today to
support legislation that will approve and authorize an
unprecedented partnership; one that will solve a major water
problem in California, and will benefit millions of people.
Settlement on the San Joaquin River will literally bring
back a living river to an entire region of our state, and will
do so through a creative and extraordinary partnership between
farmers and environmentalists, fishermen and water districts,
and Federal agencies and state agencies. And I must say, I want
to thank Congressman Radanovich in particular and Senator
Feinstein for bringing us all together and being leaders in
this effort to build this partnership.
Governor Schwarzenegger mentioned in a letter to the
Secretary of the Interior last year that one reason he was
supporting the settlement effort is that it will benefit
literally millions of Californians, while preserving a strong
agricultural economy. And that is the spirit of our testimony
today. We believe the settlement should be supported for all of
those reasons.
I have previously appeared before the Subcommittee and
testified on the San Joaquin River Settlement. I understand
that transcript is now available and will be part of the
legislative history, so I will not repeat that. What I do want
to do is talk about some of the remarkable developments since
the last hearing in September.
Madame Chairwoman, you have already outlined some of the
developments. As many people in this hearing room know, Senator
Feinstein invited us all back literally the same day, the
afternoon, of that hearing, to bring the parties together to
try to hammer out additional protections. We already felt there
were protections in the settlement for third parties, but we
added a lot of additional protections in the legislation to try
to deal with the concerns about impacts to third parties. And
after some very intense negotiations, on September 27 that
agreement was reached. Senator Feinstein's press release
announcing that agreement is in the attachments to my
testimony.
Incidentally, we did bring some additional copies of those
attachments in case anyone needs an additional copy of that.
So the legislation, the revised legislation, which is now
pending before this Subcommittee, has the support of not only
the settling parties in the State of California, but also the
third parties who were in that room and involved in those
negotiations.
Senator Feinstein did a very creative thing. She then
handed around a piece of paper, a pledge-of-support document,
and we all signed that. And I must say, yesterday we were all
working together, the third parties and the settling parties,
briefing Members of the Subcommittee and other interested
Members of Congress about the revised legislation.
Since that time the Federal Court has now approved the
settlement. It has gone into effect. And of course, in November
the voters of California approved Proposition 84, which
earmarks $100 million of state money to support the settlement.
There is also Proposition 1E, a flood bond that has additional
funding. And Secretary Chrisman from the State of California
has indicated that he thinks there may be as much as another
$100 million in those two state initiatives.
So we believe we are already off and running. The
settlement is starting to be implemented, and the voters of
California have spoken that they support it, and they are
prepared to put funding into it.
As a result of these consensus discussions, we now have
H.R. 24 and S. 27 pending before the committee. And I would
like to thank all of the co-sponsors of the legislation. We are
very indebted to you.
We believe that the final thing to keep in mind is all of
the benefits of this settlement and this legislation. I will
just list them quickly, just a quick summary of some of the
more important ones.
First, restore continuous flows to the San Joaquin River,
California's second-longest river, and one of the two main
arteries to the Bay Delta system, benefitting over 23 million
Californians.
Second, restoring some of the historic salmon runs, as well
as other fish species.
And then provide certainty of the Friant Division long-term
contractors, preserve a strong economy, provide flexibility to
the contractors through water management measures, and provide
protections for third parties.
As Mr. Dooley said, now it is up to Congress to give a vote
of approval, and we urge you to pass the legislation as quickly
as possible. Thank you.
[The prepared statement of Mr. Candee follows:]
Statement of Hamilton Candee, Senior Attorney; Co-Director,
Western Water Project, Natural Resources Defense Council
Good morning. I would like to thank the Subcommittee for this
opportunity to testify once again about restoration of the San Joaquin
River. My name is Hamilton Candee and I am a senior attorney with the
Natural Resources Defense Council (NRDC) and the Co-Director of NRDC's
Western Water Project. I appreciate the opportunity to speak today in
strong support of the historic settlement in NRDC v. Rodgers and the
pending legislation to authorize and approve this settlement, H.R. 24.
For the past 18 years, I have been a counsel of record in this case,
representing a coalition of 14 environmental and fishing groups which,
in turn, represent over 2 million people nationwide, and more than
250,000 Californians. With me today is NRDC senior attorney Kate Poole,
who also represents the NRDC Coalition and participated with me in the
multi-party negotiation that produced the landmark settlement that is
the subject of today's hearing.
I previously appeared before this Subcommittee to discuss the San
Joaquin River Restoration Settlement on September 21, 2006. At that
time, the Subcommittee heard from two panels: the first comprised of
representatives of the Settling Parties and the State of California,
and the second comprised of interested third parties. I will not repeat
here our earlier testimony which provided considerable background on
the Settlement; however I would like to request that my prior testimony
and submissions from that hearing be made part of the record for this
hearing. I would like to focus my testimony today on the remarkable
progress we have continued to make on the Settlement since that hearing
last September.
Immediately following the hearing, the Settling Parties were
invited by Senator Feinstein to commence negotiations with a wide
coalition of third parties who had asked for revisions to the then-
pending proposed Settlement legislation to address their concerns about
potential impacts of the Settlement. These negotiations included
several members of the House Resources Committee, other interested
members of the House, both of California's Senators, as well as the
various parties who testified on the third-party panel on September 21,
2006. On September 27, 2006, after extensive and difficult negotiations
in Washington, DC and California, the Settling Parties, the State of
California, and these numerous third parties agreed on a large number
of changes to the proposed legislation that were acceptable to all of
the parties. To memorialize this remarkable agreement, all of the
parties signed what has come to be affectionately known as ``the blood
oath'' which committed all the signatories to support the Settlement
and the revised legislation, and to oppose any amendments to the
revised legislation that are not agreeable to all of the parties. A
copy of that Pledge of Support document, along with Senator Feinstein's
press release announcing the agreement, is submitted with my testimony
today as an attachment.
Subsequently, on October 23, 2006, the Federal Court in Sacramento
that had presided over the NRDC v. Rodgers litigation for 18 years
approved the Settlement following a hearing on the joint motion of the
Settling Parties. The Court approved the Settlement without change
after considering the views of 13 interested individuals and groups who
were not parties to the litigation but who were allowed to file amicus
briefs expressing their views on the Settlement.
On November 7, 2006, the voters of the State of California passed
two Initiatives that potentially provide substantial State funding for
implementation of the Settlement. First, the voters passed Proposition
84, which contains $100 million explicitly dedicated to implementation
of the Settlement, as well as numerous other potential funding sources.
Second, the voters passed Proposition 1E, the flood infrastructure
bond, which provides several billion dollars in bond funds to upgrade
the State's flood protection. Because the Settlement also calls for
flood protection upgrades to be implemented along the San Joaquin
River, the State has informed the Settling Parties that Prop 1E could
potentially provide tens of millions of dollars in additional State
funding towards Settlement implementation. In the aggregate, the State
anticipates providing at least $200 million towards Settlement
implementation, as explained in the November 30, 2006 Letter from
California's Resources Secretary Mike Chrisman to Senator Feinstein
submitted as an attachment to my testimony.
In December, 2006, the Settling Parties and the State of California
addressed Senator Feinstein's request to revise further the Settlement
legislation to address the issue of ``costsharing'' between non-Federal
sources of funding and the $250 million in new Federal funds authorized
in the legislation. The Settling Parties were able to successfully
address the Senator's concerns. As a result of these two rounds of
consensus discussions to make final revisions to the draft legislation,
on December 6, 2006, H.R. 6377 and S. 4084 were introduced in the House
and the Senate with broad, bi-partisan support, including original co-
sponsorship by Senators Dianne Feinstein and Barbara Boxer and
Representatives George Radanovich, Dennis Cardoza, Jim Costa, George
Miller, Grace F. Napolitano and Richard Pombo. Action was not taken on
the bills given the short time left in the 109th Congress, but were
reintroduced on January 4th of this year as H.R. 24 and S. 27, on the
first day of the 110th Congress, once again with bi-partisan support in
the California delegation.
We thank all of the co-sponsors for their strong support. This is
the background of the legislation that is now pending before you. It is
unique legislation in that it has the support of the Settling Parties--
who represent 22 water districts, 14 conservation and fishing groups,
and 5 federal agencies--as well as a wide array of California water
users and landowners who were not parties to the Settlement but who
have now pledged their support for the settlement and this legislation,
and the State of California (which has committed extensive financial
and agency resources to the implementation of the Settlement).
We are also pleased to note that the President's recently-delivered
federal budget, and Governor Schwarzenegger's recently delivered State
budget, both support increased funding for the relevant government
agencies to implement the Settlement. In closing, I would like to
briefly recap the benefits of passing H.R. 24 and fully implementing
the Settlement. The Settlement will:
Restore continuous flows to the San Joaquin River--
California's second-longest river and one of two main arteries to the
Sacramento-San Joaquin River Delta, the source of drinking water for
over 23 million Californians;
Restore the Central Valley Spring-run Chinook salmon,
fall run Chinook salmon, and other fish populations to the San Joaquin,
much of which had been destroyed by the operation of Friant Dam over
the past 60 years;
Provide certainty to the Friant Division long-term water
contractors through the specified water releases provided for in the
Settlement;
Preserve the San Joaquin Valley's strong agricultural
economy, while enhancing environmental values in the Valley through
restoration of a living river and associated habitat;
Provide flexibility to the Friant Division long-term
contractors to reduce or avoid the water supply impacts resulting from
the Settlement through specified water management techniques such as
recirculation, low-cost water in wet years, and other measures;
Provide protections to the interests of third parties, as
included in the current legislation and in the Settlement, and ensuring
that all of the settlement provisions will be implemented in accordance
with all applicable laws, including the National Environmental Policy
Act, the Endangered Species Act, and State law;
And provide for myriad opportunities for public input and
participation during the implementation of the Settlement.
NRDC, having worked together with the other Settling Parties, the
State and those third parties who have signed the attached Pledge of
Support, is extremely proud of what we have accomplished in this
Settlement and revised legislation. The Federal and State agencies and
the Settling Parties have already begun the hard work of Settlement
implementation. The State and Federal governments have identified lead
agency personnel and teams to execute certain tasks. The Settling
Parties are cooperatively developing protocols and agreements for
public and third party participation and input. But it is critical for
all of us that we obtain passage of this legislation that is pending
before you in order to fully implement what Secretary Kempthorne and so
many other leaders have correctly described as an ``historic
settlement.''
We ask that Congress promptly pass the San Joaquin River
Restoration Settlement Act so that the San Joaquin River can flow once
again and all of the benefits of the Settlement can be realized.
Thank you.
______
[The response to questions submitted for the record by
Hamilton Candee, Co-Director, Western Water Project, Natural
Resources Defense Council, follows:]
March 15, 2007
The Honorable Grace F. Napolitano, Chairwoman
Subcommittee on Water and Power
Committee on Natural Resources
U.S. House of Representatives
1522 Longworth House Office Building
Washington, DC 20515
Attn: Emily Knight, Subcommittee Clerk
Re: March 1, 2007 Hearing on H.R. 24--SJ River Settlement Act:
Submittal #1 Response to Additional Questions by Representative Nunes
Dear Chairwoman Napolitano:
Thank you for your letter of March 5, 2007 forwarding the two
questions from Representative Devin Nunes to witnesses at the March 1,
2007 hearing of the Subcommittee on Water and Power regarding H.R. 24,
the San Joaquin River Restoration Settlement Act. One of those
questions was directed to Mr. Tom Birmingham. The other question was
directed to all witnesses. We provide below the response of the Natural
Resources Defense Council (NRDC) to the question directed to all
witnesses.
Mr. Nunes asks:
If all of the other parties involved in the negotiations
concerning the form of H.R. 24 were to agree, would your
organization support an amendment of H.R. 24 authorizing the
construction of pumping and conveyance facilities required to
implement the recirculation, recapture, and reuse elements of
the Water Management Goal of the Settlement?
As the Subcommittee knows, the Settling Parties (including the
Natural Resources Defense Council, the Friant Water Users Authority,
the U.S. Bureau of Reclamation, the U.S. Fish and Wildlife Service, and
the National Marine Fisheries Service) devoted extensive time and
effort to creating a Water Management Goal as part of the San Joaquin
River Settlement, and H.R. 24 would require the Secretary of the
Interior to carry out a number of measures specified in the Settlement
in the effort to achieve that goal. But none of those measures has been
implemented yet. Accordingly, NRDC believes an amendment to H.R. 24 as
proposed by Rep. Nunes would be premature and would not support it.
Among other things, the Settlement calls for the Secretary of the
Interior, in consultation with the Plaintiffs and Friant Parties, to
develop and implement a plan for recirculation, recapture, reuse,
exchange or transfer of the Interim Flows and Restoration Flows for the
purpose of reducing or avoiding impacts to water deliveries to all of
the Friant Division long-term contractors caused by the Interim Flows
and Restoration Flows. That plan has not yet been developed. Until it
is, the Settling Parties do not have sufficient information to identify
the most efficacious and cost-effective measures to pursue the water
management goal, and whether any further congressional authorization is
necessary.
In addition, any new pumping and conveyance facilities could impact
water users and other interests that are not currently represented by
parties involved in the negotiations concerning the form of H.R. 24,
including water users who rely on water from the Sacramento-San Joaquin
River Delta for all or a portion of their supply. We look forward to
the development of the Plan envisioned by Paragraph 16(a) of the
Settlement, which we expect will consider a range of possible water
supply mitigation measures. As that list is developed, we expect the
Interior Department to engage potentially interested or affected
stakeholders, including Delta water users, to obtain their input.
Thank you for providing us this opportunity to provide additional
information to the Committee about H.R. 24.
Sincerely,
Hamilton Candee
Co-Director, Western Water Project
cc: Honorable Devin Nunes
______
Answers of Natural Resources Defense Council (NRDC) to Additional
Questions by Chairwoman Napolitano re: SJ River Restoration Settlement
Act, H.R. 24
Questions for the Settling Parties Represented by Dan Dooley, Hamilton
Candee, and Jason Peltier
Restoration of Salmon Fisheries
1. What was the value of the San Joaquin Chinook salmon fishery
(sport and commercial) prior to extirpation of the species, in then-
current, and in 2007 dollars?
ANSWER: State Water Rights Board Decision 935 (D-935) states that
the California Department of Fish and Game estimated the combined value
of the sport and commercial salmon runs on the San Joaquin River, at
the time of commencement of storage and diversions at Friant Dam, to be
$1,032,000 (D-935, pg. 28, lines 11-20). That figure is based on 1957
wholesale price values and has not been updated to 2007 or current
values. In its 2005 Water Plan, the California Department of Water
Resources presented data showing that freshwater fishing alone
generates over $3 billion per year of economic output in California--a
number that does not take into account the loss of the San Joaquin
River salmon. We are not aware of a more precise and current estimate
of the economic output generated by the sport and commercial salmon
runs on the San Joaquin River prior to extirpation of the species.
2. The Settlement Agreement calls for restoring fall and spring
runs of Chinook salmon, yet Sec. 10 of H.R. 24 only addresses
restoration of spring-run Chinook. Will the fact that the bill does not
directly address restoration of fall Chinook salmon affect
reintroduction of fall Chinook as called for in the Settlement?
ANSWER: No. The reason fall Chinook salmon was not addressed in the
bill is because it is not listed under the ESA.
Has a decision been made that it is infeasible to restore both
spring-run and fall-run Chinook salmon, as provided for in
settlements paragraph 14(a)? If so, please explain the basis
for this decision.
ANSWER: No such decision has been made.
3. The report that would assess the success of the reintroduction
of salmon is to be made no later than December 31, 2024, under H.R. 24.
Why is the deadline 12 years after the expected introduction of the
experimental population in 2012?
ANSWER: The Settlement provides for frequent monitoring of the
progress of restoration. The deadline for the report on reintroduction
was selected in part because twelve years is expected to provide data
on at least 3 generations of salmon.
Will there be other reports or monitoring that will gauge
progress sooner or on a regular basis?
ANSWER: The Settlement calls for annual Reports on the progress of
the restoration effort as well as frequent monitoring.
4. In the 1992 Central Valley Project Improvement Act, Congress
directed the Secretary of the Interior to develop a program to ensure
sustainable anadromous fish populations double their average from 1967-
1991 in 10 years; however, after 15 years, this goal has not been
achieved. Given the difficulty in meeting the obligations set out in
1992, how long will it take to restore to ``good condition'' an
extirpated species?
ANSWER: The Settling Parties may have different views as to why
progress under CVPIA has been slower than hoped; in fact, the adequacy
of the government's implementation of the CVPIA has been a matter of
some dispute. With respect to H.R. 24 and the San Joaquin River, the
Settlement defines the Restoration Goal as the restoration and
maintenance of fish populations in ``good condition'' in the main stem
of the San Joaquin River below Friant Dam to the confluence of the
Merced River, including naturally-reproducing and self-sustaining
populations of salmon and other fish. The Settlement does not
specifically define what ``good condition'' means in terms of
population targets. However, the Settlement requires the Technical
Advisory Committee and the Restoration Administrator to make
recommendations to the Secretary of the Interior on interim and long
term population targets toward meeting this goal. As seen historically
on the main stem San Joaquin and, more recently, on other tributary
rivers, Chinook salmon populations can grow from a few hundred to
several thousand within a few years.
5. What other fish and wildlife species will benefit from this
restoration effort? Do they include other listed or candidate species
on federal or state endangered species lists?
ANSWER: Numerous fish and wildlife species will benefit from this
restoration effort. The Settling Parties have focused restoration
planning on Chinook salmon because satisfying the life history
requirements for Chinook creates conditions that are favorable for a
diverse native assemblage of fishes that historically existed below
Friant Dam. It is anticipated that the restoration requirements
outlined in the Settlement will sustain native anadromous fish such as
spring and fall run Chinook salmon and Pacific lamprey, as well as
resident native fish in the cool-water reaches, including Kern brook
lamprey, hitch, California roach, hardhead, Sacramento pikeminnow,
Sacramento sucker, rainbow trout, tule perch, threespine stickleback,
prickly sculpin and riffle sculpin. In warmer reaches, the restoration
effort may also help Sacramento blackfish and Sacramento perch. In
addition, elevated flows, especially spring pulse flows, should help
Sacramento splittail and other native fishes to spawn in floodplain
areas, as well as provide additional places for juvenile salmonids to
rear. While some of these fish face varying levels of threats, none are
currently listed as threatened or endangered under the federal or state
endangered species acts, with the exception of spring run Chinook
salmon.
The Settlement hydrograph includes ``riparian recruitment'' flows
designed to help restore riparian vegetation and a riverine ecosystem
along the banks of the San Joaquin River. This riparian corridor should
sustain a wide variety of native wildlife and bird species. It could
also provide a crucial link between existing conservation areas, from
the San Luis National Wildlife Refuge, the Merced National Wildlife
Refuge, and the Grasslands Wildlife Management Area along the northern
stretch of the San Joaquin River to the Mendota Wildlife Area and the
Kerman and Alkali Sink Ecological Reserves to the south.
6. What recreation benefits might be realized from these
restoration activities?
ANSWER: By restoring continuous flow, fisheries and riparian
habitat to the San Joaquin River, the restoration activities will have
significant, positive impacts on water-dependent outdoor recreation
along the San Joaquin River.
Water-dependent recreation activities are very popular in
California. The California Department of Parks and Recreation has
conducted statewide surveys of public opinions and attitudes on outdoor
recreation in California every five years since 1987. The results
consistently indicate the great importance to Californians of outdoor
recreation, and water-dependent recreation in particular. In a recent
survey, conducted in 2002, 84.1% of those surveyed responded that
outdoor recreation areas and facilities were important or very
important to them and their families. When respondents were asked to
consider their favorite recreation activity and to assess the
importance of various factors to their overall enjoyment of this
activity, 67.4% said that being outdoors was a very important factor
for them, and 43.8% said that the availability of water (lakes,
reservoirs, rivers, wetlands) was very important for them. With regard
to participation, 75.1 % of respondents had participated at least once
in 2002 in wildlife viewing, bird watching and/or viewing natural
scenery; 46.7% had participated in swimming in freshwater lakes, rivers
and/or streams; and 34% had participated in freshwater fishing.
Using the data from this survey, the 2005 California Water Plan
prepared by the Department of Water Resources estimates that, in 2002,
adult Californians spent about 150 million participation-days on water-
based recreation; in the case of water-related recreation, it estimates
that there were 55 million adult participation-days for wildlife
viewing, and 36 million adult participation-days for hiking. With
regard to the economic impact of water-dependent recreation in
California, the most specific information available is for
sportfishing. The 2005 Water Plan presents data showing that freshwater
fishing alone generates over $3 billion per year of economic output in
California. The economic activity generated by other components of
water-dependent recreation, including water-related tourism, exceeds
that associated with freshwater fishing by a very substantial margin.
Thus, water-dependent outdoor recreation by both residents and tourists
is now an important part of the California economy.
Restoring the San Joaquin River to a living river will provide
numerous opportunities for these types of water-dependent recreation,
as well as significant economic benefits for providers and supporters
of these activities.
Experimental Populations Under the Endangered Species Act
Section 10(b) of H.R. 24 requires a determination by the Secretary
of Commerce as to whether a permit for an experimental population can
be issued for reintroduction of spring- run Chinook salmon under
Sec. 10(j) of ESA. The language in Sec. 10(j) of ESA, related to
experimental populations, states that these provisions are applicable
to introductions outside the current range of such species and wholly
separate geographically from non-experimental populations of the same
species. However, spring- (and fall-) run Chinook salmon reintroduced
into the San Joaquin River may inhabit portions of the Sacramento-San
Joaquin River drainage in common with other established Chinook salmon
populations.
1. Would any reintroduction of spring-run salmon to the San
Joaquin River be outside the current range and wholly separate from
nonexperimental populations of this species?
ANSWER: This issue was of primary concern to representatives of
third-party water users who obtain water from tributaries of the San
Joaquin River downstream of Friant Dam. A member of this group, Mr.
Kenneth M. Robbins, General Counsel of the Merced Irrigation District,
provided testimony on this question at the March 1, 2007, hearing on
behalf of the San Joaquin Tributaries Association. While his views do
not necessarily reflect the views of the Settling Parties, it should be
noted that Mr. Robbins testified that:
With regard to the ``wholly separate'' criterion, the
reintroduction of Central Valley Spring Run Chinook Salmon to
the San Joaquin River should qualify as no other populations of
Central Valley Spring Run Chinook Salmon exist on the San
Joaquin River or its tributaries. Indeed, to reintroduce them
individuals or eggs of Central Valley Spring Run Chinook Salmon
on the Sacramento River will have to be transported to the San
Joaquin River.
2. Section Sec. 10(b) of H.R. 24 makes the reintroduction of
spring-run Chinook salmon dependent upon a discretionary finding by the
Secretary that such a permit can be issued. What are the guarantees
that the reintroduction will be allowed to proceed under this approach,
or if it is allowed to proceed, that it will not be legally
challengeable under a strict reading and interpretation of Sec. 10(j)
of the ESA?
ANSWER: Section 10(b) is consistent with existing provisions of the
Endangered Species Act, which vests discretion with the Secretary of
Commerce (in the case of anadromous fish such as spring run Chinook
salmon) to determine whether a permit for the reintroduction of a
listed species may be issued in light of certain defined factors. We
anticipate that the Secretary will find that those factors are
satisfied in this case. Once the Secretary makes that determination
pursuant to section 10(a)(1)(A) of the Endangered Species Act, section
10(b) of H.R. 24 provides that spring run Chinook salmon ``shall be
reintroduced in the San Joaquin River below Friant Dam.''
3. How will the introduced population be determined a success or
failure? What if the experimental population of salmon does not
succeed? Will this affect the terms of the Settlement? Will there be
changes in the restoration flows or water management activities?
ANSWER: The Settlement addresses all of these issues within the
text of the Stipulation of Settlement. For example, as indicated in the
answer to Question 4 above, the Settlement requires the Technical
Advisory Committee (which includes representation of the California
Department of Fish and Game) and the Restoration Administrator to make
recommendations to the Secretary of the Interior on interim and long
term population targets for the reintroduced salmon. Similarly, the
Settlement provides that certain essential terms can be ``reopened''
after 2025 pursuant to a procedure by which the State Water Resources
Control Board must make a number of specific findings to the Court,
including findings about levels of progress or success under the
Settlement. Finally, the Settlement provides explicitly that
``achieving all of the Restoration Goal by December 31, 2025 may not be
possible,'' and that ``nonetheless, the Parties agree that engaging in
the restoration and water management efforts called for by this
Settlement are expected to provide significant public benefits beyond
the Restoration and Water Management Goals.''
4. Section 10(b) of H.R. 24 directs the Secretary to reintroduce
spring-run Chinook salmon pursuant to ESA Sec. 10j and the Settlement.
What potential conflicts exist between these prescriptions for
introducing salmon and how will they be resolved?
ANSWER: We do not anticipate potential conflicts between the
Section 10(b) of H.R. 24 and the Settlement. Nevertheless, the federal
and state implementing agencies are in the process of creating
mechanisms for inter-agency coordination as well as ongoing
consultation with the Settling Parties and with third parties regarding
implementation of the Settlement and the legislation.
5. The San Joaquin River supported spring and fall-run Chinook
salmon in the southernmost part of their historical range. Could
factors such as climate change or natural migration make it unlikely
for salmon to exist in the San Joaquin River when experimental
populations are assessed in 2024?
ANSWER: While climate change has the potential to warm our rivers
and reduce habitat for cold water species like salmon, there are three
reasons why the San Joaquin River salmon will likely fare better than
other runs in some other locations. First, the snow pack which feeds
the San Joaquin River is less likely to be reduced due to global
warming because some of the highest mountains in the Sierra are in the
upper San Joaquin drainage. Second, upstream of Friant Dam are several
hydropower dams with a combined storage (about 600TAF) that is larger
than Friant Dam (520TAF). These non-diversion dams generally store
water high in the mountains until the late spring and summer and then
release much of the water through underground tunnels for power
generation. This keeps the water cold and provides cooler flows
beneficial for fish later in the year. Third, spring run Chinook salmon
are relatively well adapted to climate change because the up-coming
adults and out-going juveniles migrate during the cold winter and
spring months. The Settlement also has three flexibility elements that
will help in managing for the effects of climate change. First, flows
are allocated in blocks of water to be released at times when they are
most needed and will provide maximum benefits to fish. Second, the
Settlement includes an additional 10% of ``buffer flows'' which can be
called upon if needed to help meet temperature requirements. Third, if
more flows are needed there are provisions allowing for the purchase of
additional water from willing sellers.
Before a population is deemed experimental under ESA, it must be
determined to be essential or nonessential by the Secretary.
1 An essential population is defined as a population whose
loss would be likely to appreciably reduce the likelihood of the
survival of the species in the wild. All other populations would be
determined as nonessential. Nonessential populations shall not have
critical habitat designated; essential populations could have critical
habitat designated through a special rulemaking process.
---------------------------------------------------------------------------
\1\ The term Secretary under ESA refers to the Secretary of the
Interior or the Secretary of Commerce with respect to program
responsibilities for the species in question, unless otherwise
specified.
---------------------------------------------------------------------------
1. If the experimental population of Chinook salmon were
determined to be essential, and critical habitat designated, will this
modify federal water management activities on the San Joaquin River?
Will third parties be affected?
ANSWER: As explained above, these issues were of significant
concern to representatives of third-party downstream water users. A
member of this group, Mr. Kenneth M. Robbins, General Counsel of the
Merced Irrigation District, testified at the March 1, 2007 hearing that
H.R. 24 adequately addresses these concerns. While his views do not
necessarily reflect the views of the Settling Parties, it should be
noted that Mr. Robbins testified as follows:
With respect to the required finding that the experimental
population's loss would not appreciably reduce the species'
likelihood of survival, it would be difficult to understand how
the Secretary could find that the population to be reintroduced
is ``essential to the continued existence of the species'' and
still remove it from a much more friendly habitat--particularly
in light of its threatened status rather than endangered. One
would reasonably conclude that the fish would not be taken from
their original habitat for such an experiment if they were in
fact ``essential.''
Mr. Robbins further testified that:
H.R. 24 contains a provision that provides that the
reintroduction of the Central Valley Spring Run Chinook Salmon
not impose more a than de minimis water supply reductions,
additional storage releases, or bypass flows on third parties.
We support this language as it is currently written.
2. Section 4(d) of ESA authorizes the Secretary to prepare
regulations to provide for the conservation of threatened species. Has
the National Marine Fisheries Service (NMFS) or Fish and Wildlife
Service (FWS) ever been directed by Congress to issue a 4(d) rule under
ESA for an experimental population?
ANSWER: This question is directed to two Federal agencies;
accordingly, we refer the Committee to the response of the Federal
Parties.
______
Mrs. Napolitano. Thank you, sir. That was a very good wrap-
up.
Next we will go on to Mr. Jason Peltier, Principal Deputy
Assistant Secretary for Water and Science with the U.S.
Department of Interior here in Washington. Welcome, sir.
STATEMENT OF JASON PELTIER, PRINCIPAL DEPUTY ASSISTANT
SECRETARY FOR WATER AND SCIENCE, U.S. DEPARTMENT OF THE
INTERIOR, WASHINGTON, D.C.
Mr. Peltier. Thank you, Madame Chairwoman, and
congratulations on your ascendancy. And we look forward to
working with you not only on this bill, but on a broad suite of
issues facing the 17 western states that are--it is a show that
never ends.
[Laughter.]
Mr. Peltier. And we are happy to have you in the ringmaster
seat, and look forward to working with you.
Mrs. Napolitano. Sir, you don't know how close we are going
to be working.
[Laughter.]
Mr. Peltier. We look forward to that, whatever it is.
I am pleased to be here, and pleased to provide the
Administration's support for H.R. 24. I know a lot of you over
the years are not used to hearing us open our testimony with
those words, but we are today very supportive of the
legislation before the committee.
I think I would associate myself with everything our
settling partners have said this morning. And I think I would
like to move directly, in a few minutes, simply to address some
of the concerns that Congressman Nunes has raised. Because I
think the issues about uncertainty and ongoing concerns are two
very big realities we face across the West. Wherever we see the
interface of water project operations and ecosystems, whether
it is in impacts or efforts to improve, absolutely those are
the watch words. Those are the things that we struggle with
every day as we deal with how to achieve the economic and
environmental goals that we have. And uncertainty abounds on
every front. And it is a great challenge for all sides, that we
must face and deal with.
Certainly, in the broader context of water issues in your
state, we are on the verge of dealing with some very large
historical issues, whether it be on the Klamath River, the
Salton Sea, flood control issues around Sacramento, the Delta
of course, drainage on the west side. All of these issues have
been evolving and developing and coming to the point of
potential steps forward. And all of them are embedded with the
issues of uncertainty and many, many concerns, as we go forward
and attempt to deal with them.
I think on all of those issues we can look to this
experience, to the progress we have made in resolving this
long, ugly fight, We always weren't pals with Hal and his
troop. But we have crossed into this new age of working
together and solving problems. And frankly, it feels very good.
And it is a good feeling to know that as we strive to solve
problems, as we strive to eliminate uncertainty, that we can do
it in a partnership a lot better than we can when we are in a
conflict mode.
The partnerships extend beyond the settling parties. The
third parties have been mentioned. Certainly with our friends
at the State of California, and in broader, within the U.S.
Government. There is a range of Federal and state agencies that
will be deeply, deeply involved in this effort as we go
forward, all with their independent, and sometimes frankly
conflicting or competing missions, but that is one of the
uncertainties and concerns that we all must wrestle with, is
aligning those missions to accomplish our common end goal.
With that, Madame Chairwoman, I am prepared to answer
questions. Thank you.
[The prepared statement of Mr. Peltier follows:]
Statement of Jason Peltier, Principal Deputy Assistant Secretary for
Water and Science, U.S. Department of the Interior
Madam Chairman and members of the Subcommittee, I appreciate the
opportunity to appear before you today to discuss H.R. 24, the San
Joaquin River Restoration Settlement Act. H.R. 24 provides
authorization and funding for the Secretary of the Interior to
implement the terms and conditions of the Stipulation of Settlement
(Settlement) dated September 13, 2006, in Natural Resources Defense
Council, et al. v. Kirk Rodgers, et al., which was approved by the U.S.
District Court on October 23, 2006. The Department supports H.R. 24.
During the eighteen years since this case was filed, relations
between stakeholders in the San Joaquin River basin, including the
State of California, Reclamation water users, environmentalists, and
Federal agencies, have often been contentious. However, through the
good faith efforts of the ``Settling Parties,'' namely Natural
Resources Defense Council (NRDC), Friant Water Users Authority (FWUA),
and representatives of the Bureau of Reclamation, Fish and Wildlife
Service, National Marine Fisheries Service, and the Department of
Justice for the United States, an opportunity has been presented to
resolve this litigation in a way that will both restore the San Joaquin
River and increase water supply certainty to farmers in the Friant
Division. My testimony today will provide an overview of the Settlement
and the importance of this authorizing legislation.
Brief Background
The Bureau of Reclamation has water service contracts with 28
entities made up of cities and water districts of various sorts that
rely on the water supply from the Friant Division, one of the key
features of the Central Valley Project. Friant Dam is located on the
upper San Joaquin River, where it forms Millerton Lake, and became
fully operational in the late 1940s. Our understanding is that about
15,000 farms rely on Friant water supplies.
Except for flood-control operations, Friant Dam/Millerton Lake is
operated to meet minimum downstream flow requirements and maximize
water deliveries. As a result, approximately 60 miles of the 153 river
miles between Friant Dam and the confluence of the Merced River have
been dried up in most years, except during seasonal flood control
releases. Prior to construction of Friant Dam, the stretch of river
downstream of the dam supported a healthy fishery, including salmon
runs, which the dam effectively eliminated.
In 1988, a coalition of environmental groups led by NRDC filed suit
challenging the federal defendants' compliance with the National
Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) in
connection with the renewal of the long-term water service contracts
between the United States and the Central Valley Project, Friant
Division contractors. Most of the Friant Division long-term contractors
intervened as additional defendants.
Through amended complaints, the plaintiffs subsequently included a
claim asserting that pursuant to Sec. 8 of the Reclamation Act of 1902,
the federal defendants must operate Friant Dam in accordance with
California Fish and Game Code Sec. 5937. California Fish and Game Code
Sec. 5937 requires the owner or operator of any dam in California to
allow sufficient water to flow through or around the dam in order to
keep the downstream fishery in ``good condition.'' During the initial
phase of the litigation, the District Court ruled that the contracts
were not entered into in violation of NEPA requirements, but held that
approval of the renewal contracts violated procedural requirements of
the ESA. The District Court did not rule on the Sec. 5937 claim. On
June 24, 1998, the Ninth Circuit Court of Appeals affirmed most of the
District Court's rulings but remanded to the District Court the issue
of the applicability of California Fish and Game Code Sec. 5937 to the
operation of Friant Dam.
From 1998 to 2003, without direct involvement by Federal
defendants, FWUA and NRDC attempted to settle the remanded issue. In
2003, those discussions were terminated, and on July 19, 2003, the
plaintiffs amended their complaint by adding the Secretary of Commerce
and the National Marine Fisheries Service as additional defendants and
adding claims asserting that the long-term renewal contracts do not
conform to the requirements of the Central Valley Project Improvement
Act (CVPIA). In an Order issued on August 27, 2004, Judge Karlton
concluded that Reclamation violated California Fish and Game Code
Sec. 5937, and scheduled a trial on the issue of remedy for that
violation.
During the summer of 2005, at the request of Subcommittee Chairman
George Radanovich and Senator Dianne Feinstein, FWUA and NRDC
reinitiated settlement discussions. In November 2005, the Federal
government was invited into those discussions, and in spring 2006, the
State of California was also approached about the negotiations since
the negotiators foresaw that the State would have a significant role in
the implementation of any settlement. On September 13, 2006, the
Settling Parties filed the Settlement, including proposed Federal
implementing legislation, with the Court. The Settlement Agreement is
based on two goals and objectives:
1. To restore and maintain fish populations in ``good condition''
in the main stem of the San Joaquin River below Friant Dam to the
confluence of the Merced River, including naturally reproducing and
self-sustaining populations of salmon and other fish.
2. To reduce or avoid adverse water supply impacts to all of the
Friant Division long-term contractors that may result from the Interim
Flows and Restoration Flows provided for in the Settlement.
Restoration Goal
The Settling Parties have carefully studied San Joaquin River
restoration for many years and as part of the Settlement have
identified the actions and highest priority projects necessary to
achieve the restoration goal. These include among others: expanding
channel capacity, improving levees, and making modifications necessary
to provide fish passage through or around certain structures in the
river channel. Also called for are year-round flows in the San Joaquin
River, including those areas that have been without continuous flows
for decades. This action would be taken to restore and maintain fish
populations in good condition, including naturally reproducing and
self-sustaining populations of Chinook salmon and other fish in the
153-mile stretch of the river between Friant Dam and the confluence of
the Merced River.
Water Management Goal
Recognizing that the Settlement's Restoration Flows will reduce the
amount of water available for diversion at Friant Dam, the Settlement
also includes provisions to protect water availability for the 15,000
farms that currently rely on these supplies. One million acres of some
of the most productive farmland in the country as well as many towns
and cities along the southern San Joaquin Valley's East Side receive
all or a major portion of their water supplies from the Friant
Division. The Settlement recognizes the importance of this water to
those farms and calls for development of water management solutions to
provide these users water supply certainty for the long term. Such a
program would include a Recovered Water Account to make surplus water
available at a reduced rate to farmers who have contributed water to
the Restoration Flows and a flexible combination of recirculation,
recapture, reuse, exchange and/or transfer programs. Additional
groundwater banking may also be explored.
Phased Approach
Restoring continuous flows to the approximately 60 miles of dry
river will take place in a phased manner. Planning, design work, and
environmental reviews will begin immediately, and interim flows for
experimental purposes will start in 2009. The flows will be increased
gradually over the next several years, with the goal of reintroducing
salmon by December 31, 2012.
The flow regime called for in the Settlement continues unchanged
until 2026, with the U.S. District Court retaining jurisdiction to
resolve disputes arising under the Settlement.
After December 31st, 2025 the court, in conjunction with the
California State Water Resources Control Board, could consider any
requests by the parties for changes to the Restoration Flows.
Importance of Legislation
As the implementation of this historic Settlement begins, I can't
emphasize enough how important it is for Federal authorizing
legislation to be approved and signed into law. Passing this
legislation soon will demonstrate the kind of support and commitment
from the Federal government that is necessary to prove we are serious
about making this settlement and its twin goals a reality. Some initial
funding and authority exists for Interior agencies to work with our
State partners to initiate planning and environmental review
activities, which we have already begun to do. Without authorizing
legislation such as H.R. 24, however, we lack sufficient authority to
implement the actions in the Settlement. Moreover, beginning in Fiscal
Year 2008 we will have insufficient funding to stay on the aggressive
schedule called for in the Settlement to complete the necessary
planning and environmental reviews for initiating construction
activities and ultimately restoring flows into the San Joaquin River
from Friant Dam. Such delays would send the wrong message regarding the
Federal support for implementation.
Restoration Funding
The proposed legislation is consistent with the recommendation in
the Settlement regarding funding sources to support implementation of
these projects, including the use of current payments from farmers and
cities served by Friant Dam, redirection of Federal funds from the
Reclamation Fund, state bond initiatives, and authorization for
additional Federal appropriations as long as there is a non-Federal
cost share. Funds are to be used to meet both the Water Management and
Restoration goals.
More specifically, the proposed legislation, consistent with the
Settlement, allows for the continuation of and the dedication of the
``Friant Surcharge,'' an environmental fee charged pursuant to the
Central Valley Project Improvement Act (CVPIA) of $7 per acre foot of
water delivered to Friant Contractors. This fee is expected to average
about $8 million per year ($160 million over the 20-year period). Up to
$2 million annually of other CVPIA Restoration Fund payments made by
Friant water users under the CVPIA ($40 million over the 20-year
period) would also be directed for implementation of the Settlement.
The legislation also calls for the dedication of the capital
component of water rates paid by Friant Division water users to the
Settlement implementation (approximately $220-240 million over the 20-
year period). These are funds that at present go to the Reclamation
Fund in the U.S. Treasury to repay the capital costs of construction in
the Friant Division. Under this bill, these funds would be deposited
into a newly established San Joaquin River Restoration Fund to pay
directly for implementing the Settlement. The Settlement provides that
the monies contributed to the Settlement from the Friant Surcharge and
capital repayment obligation may be used to fund bonds, guaranteed
loans or other finance instruments issued by agencies or subdivisions
of the State of California.
In addition, the legislation authorizes up to $250 million of
additional Federal appropriations to contribute to the implementation
and requires a non-federal cost-share of an equivalent amount.
Funding by the State of California will also support the
Settlement. Last November, State propositions 84 and 1e were passed by
the California voters and should provide about $200 million of State
bond funds for projects that will directly contribute to the
restoration efforts.
Although the Settling Parties have agreed on a suite of actions to
be taken to restore flows and salmon runs, the total cost and the
specificity of those actions still contain significant uncertainty. The
Parties anticipate that a multi-agency technical team established to
implement the Settlement would develop additional design details
typically found in a Feasibility-level study needed to take the
proposed actions. The Parties also anticipate that the estimated costs
projected to be required to meet the restoration goal (i.e. $250
million-$800 million) would be further refined during the initial phase
of implementation.
This uncertainty in project costs has been a source of concern to
both the Administration and the State of California. As project
partners, we realize that the Federal appropriations proposed in this
legislation, in addition to the funding sources already described, may
be integral to implementing the settlement. However, the Administration
is not willing to commit to seeking any particular level of funding
until further planning and engineering studies are completed that
identify with more certainty the total estimated cost of this Program.
All the parties to the Settlement must also realize that implementation
of this settlement, including this authorizing legislation, does not
imply a limitless Federal commitment to fund whatever it costs.
Status of Implementation
As already mentioned, some initial funding and authority exists for
Interior to work with our State partners to initiate planning and
environmental review activities, and we have been doing just that.
Interior, through Reclamation and the Fish and Wildlife Service, is
working with the other Settling Parties, the State of California, the
affected Third Parties (discussed below), and other Federal agencies
regarding the implementation process and other related matters. A
multi-agency Program Management Team including California Dept. of
Water Resources, California Dept. of Fish and Game, and U.S. Fish and
Wildlife Service, National Marine Fisheries Service, and Reclamation
have begun efforts to initiate an implementation process, including
public outreach, planning, design, and environmental reviews. This
multi-agency team is developing a Program Management Plan (PMP),
scheduled for completion this Spring, that will describe the
implementation process, the scope and timeline of the activities,
studies to be completed, and the process to involve and receive input
from interested third parties as well as the broader public. The PMP
will address strategies to meet both the Restoration Goal and the Water
Management Goal described in the Settlement. As a further demonstration
of the Administration's commitment to implementing this settlement, the
President's FY 2008 Budget for Reclamation presumes a re-direction of
capital repayment receipts away from the Reclamation Fund and into the
newly-created San Joaquin Restoration Fund; it also presumes the
allocation $7.5 million of funds from the CVPIA Restoration Fund to the
San Joaquin Restoration Fund. However, these actions in the Budget
presume enactment of the legislation.
Third Parties
We fully recognize and appreciate the importance of involving
affected third parties in the implementation of the Settlement, and
several steps have been taken to meaningfully involve them in the
development and implementation of the Settlement. Prior to the
execution of the settlement documents, copies of the draft documents
were made available in Sacramento, Fresno, and San Francisco for review
by interested third parties, subject to confidentiality agreements.
Representatives of water users on the west side of the Central Valley;
water users from tributaries to the San Joaquin River downstream of
Friant Dam; the Exchange Contractors, who receive water from the Delta
in lieu of water they would otherwise divert from the San Joaquin River
below Friant Dam; and other parties concerned about river management
issues (collectively, ``Third Parties'') took the opportunity to review
the Settlement documents. In addition, the Settling Parties conducted
numerous briefings throughout the Central Valley, which were attended
by approximately 70 Third Party representatives. At those briefings,
the Settling Parties reviewed the proposed Settlement in detail,
responded to questions, and listened to comments. Following those
briefings, a number of entities submitted written comments on the
Settlement documents. Their primary areas of concern were related to
the ESA take provisions, operation & maintenance, funding, meaningful
participation in implementation of the program, and water rights. After
consideration of comments from Third Parties, the Settling Parties made
modifications deemed appropriate to some of the settlement documents
and further provided the Third Parties with a comprehensive written
response to their written comments. In addition, language was added to
the legislation before it was introduced to strengthen protections for
Third Party interests.
Since the Settlement was signed and the legislation was drafted,
the Bureau of Reclamation has been working closely with a group of
Third Parties with downstream concerns on a Memorandum of Understanding
(MOU), which was reviewed by the Settling Parties and was signed on
February 26, 2007 by Reclamation and the Third Parties involved.
The MOU articulates the interests of these Third Parties and agrees
that Reclamation will work closely and involve the Third Parties
throughout the implementation of the Settlement on matters pertaining
to their interests.
In supporting this settlement, the Administration remains committed
to implementing other salmon restoration programs along the Pacific
coast. The San Joaquin settlement that would be implemented by H.R. 24
provides a model of how stakeholders can come together to rebuild
historic salmon populations and restore communities. We are open to
exploring how this model could be used to help implement other similar
restoration programs.
Conclusion
This monumental agreement ends an 18-year legal dispute over the
operation of Friant Dam and provides increased certainty to Friant
Division farmers who rely on CVP water deliveries while returning flows
and salmon runs back to the San Joaquin River. H.R. 24 would provide
the federal authorization and funding needed to move into
implementation. We believe that this historic agreement is the start of
a truly collaborative process that will result in a restored river for
all. I strongly recommend that this committee act swiftly on this
legislation to allow the Federal government to move forward without
delay and to send a message of support to the Parties and our
implementing partners.
Madam Chairman, this concludes my testimony. I would like to
reiterate my appreciation to the subcommittee for your interest in this
settlement. I would be happy to answer any questions at this time.
______
Response to questions submitted for the record by Jason Peltier,
Principal Deputy Assistant Secretary for Water and Science, U.S.
Department of the Interior
Questions from Rep. Napolitano:
Some stakeholders are concerned that the financing mechanisms
contained in Sec. Sec. 7 and 9 of H.R. 24 will, in essence, divert
funds currently flowing to the Central Valley Project Restoration Fund
(CVPRF) to a new San Joaquin River Restoration Fund. The CVPRF
currently funds fish, wildlife, and habitat mitigation and restoration
projects throughout the CVP service area, including the Trinity River
basin, with apparent emphasis on anadromous fish projects in the
Sacramento River basin.
1. What has been the annual disbursement of CVPRF monies for
projects in each of the following basins since 2002: the Sacramento
River basin; San Joaquin River basin; the Trinity River basin?
Answer: The Central Valley Project is financially and operationally
integrated and, therefore, Restoration funds are not tracked by river
basin. Restoration funds are expended to meet the goals and objectives
of those activities specified in Sections 3406 and 3408 of the Central
Valley Project Improvement Act. Many of these activities cut across
river basins.
2. How do these disbursements compare with revenues taken into the
fund from various CVP unit contractors (Sec. 3407(d) charges)? Can you
please provide a breakdown of annual CVPRF charges by contractor and/or
by CVP unit?
Answer: Because the CVP is financially and operationally
integrated, Restoration charges collected from each division are pooled
to meet the objectives listed in the CVPIA. Therefore, disbursements
cannot be compared with revenues taken into the fund from various CVP
contractors. Congress appropriates revenue collected by the Restoration
fund and allocates it to ongoing CVPIA program priorities.
The following table provides a breakdown of annual Central Valley
Project Restoration fund revenues, collected pursuant to Section
3407(d), by CVP division for Fiscal Years 2002 through 2006.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
3. How might annual disbursement of CVPRF monies change if H.R.
24, as written, were enacted?
Answer: Congressional appropriations dictate the annual
disbursement of CVPRF monies, which for years beyond Fiscal Year 2007
are unknown at this time. However, Reclamation anticipates that the
disbursement would take into account the shift of the ``Friant
surcharge,''* collected pursuant to Section 3406(c)(1) of the CVPIA, to
the San Joaquin River Restoration Fund (approximately $7.5 million
annually), and that the remaining CVPRF monies would be allocated to
ongoing CVPIA program priorities.
It appears from Reclamation's recent budget request for FY2008 that
Friant contractors have paid approximately $7.5 million annually in
Sec. 3406(c)(1) surcharges.
4. How much have Friant contractors paid annually in Sec. 3407
charges?
Answer: The average annual amount that Friant contractors have paid
in Sec. 3407 charges over the past ten years (1997-2006) is $9.5
million.
5. How much money has been collected in Sec. 3407 charges on water
flowing from the Trinity Division?
Answer: Water flowing from the Trinity Division is combined and
integrated with water from other divisions of the Project for multiple
authorized purposes of the CVP, not all of which are charged a
restoration charge pursuant to Section 3407 of the CVPIA. Therefore, we
cannot calculate an amount that has been collected specifically on
water that originates from the Trinity Division.
6. Given that Sec. 7(2) of H.R. 24 states that the Friant
surcharge shall continue to be counted toward the requirements of the
Secretary to collect charges under Sec. 3407(c)(2) of the CVPIA (but
deposited into a different fund), is it correct to assume the pool of
money available for disbursement from the CVPRF would be reduced by at
least $7.5 million per year (the amount of the Friant surcharge
collections)? What about Friant Sec. 3407(d) charges? Will Friant
contractors continue to be assessed a mitigation and restoration charge
under Sec. 3407?
Answer: Yes, the amount collected for appropriation into the CVPRF
would be reduced by the amount of the Friant surcharge (which instead
would be deposited into the newly created San Joaquin River Restoration
Fund). As a result, on average the amount of money collected for
appropriation into the CVPRF would be reduced by $7.5 million per year.
However, under CVPIA Sec. 3406(c)(1), the Friant division contractors
are required to pay the surcharge only ``until such time as flows of
sufficient quantity, quality and timing are provided...to meet the
anadromous fishery needs identified...''. Thus, once Congress
authorizes releases from Friant Dam, the Friant surcharge would no
longer be collected. As part of the Settlement, the Friant Contractors
have agreed to continue to pay the surcharge, which is reflected in
Sec. 7(1) of H.R. 24. The amount of funding assessed and collected by
the Secretary under all provisions of the CVPIA would remain the same
should H.R. 24 be enacted, including Sec. 3407(d) charges.
Section 9. Appropriations; Settlement Fund
Section 9 of H.R. 24 outlines expected implementation costs of the
settlement and how they shall be covered. Non-federal payments are
estimated to total $200 million, while the federal share is expected to
be $240 million in repaid CVP capital obligations that would go into
the San Joaquin River Restoration Fund, instead of the Reclamation Fund
(U.S. General Treasury), an additional $250 million in appropriations
authorized under the Act, as well as authorized use of other CVPRF
monies.
7. At minimum, what is the expected annual amount of money to be
made available for implementation of the Act? Is it correct to assume
at a minimum that $7.5 million in former Friant surcharges and $8.8
million in capital payments would be made available in the first year
of implementation?
Answer: Under section 9 of H.R. 24, funds collected pursuant to
section 3406(c)(1) of the CVPIA (the Friant ``surcharge'') would be
deposited into the newly established San Joaquin River Restoration Fund
beginning the fiscal year following enactment of the legislation. Those
surcharges have averaged about $7.5 million over the past ten years.
Capital payments for the first fiscal year after the date of enactment
would also be deposited into the fund. Capital payments have averaged
$8.8 million over the past three years. The actual amount collected in
any given year for both surcharge and capital, however, is dependent
upon, among other things, the annual water deliveries, which vary based
on hydrology and water availability. As a result, a minimum funding
level cannot be guaranteed. Also, under CVP rate-setting policies,
application of revenue against annual operation and maintenance costs
may reduce the amount of anticipated revenue credited toward CVP
capital in a given year. In the past three years, the lowest amount
collected was $7.4 million in Friant surcharges, and approximately $7
million was collected from Project water deliveries and credited to
capital repayment.
8. If it is so that $16.3 million could be expected for immediate
implementation, what could be expected to be accomplished annually with
these funds? Will funding go to projects similar in nature to what is
currently funded via the CVPRF, but within the framework of the
Settlement? What will be the highest priority projects/programs for
funding?
Answer: As stated above, because of uncertain hydrology and related
water deliveries, we cannot ascertain the exact amount of funding
available for implementation, immediately or otherwise. However, we do
know that available funds will be used during the early years of
implementation for initial planning activities. During the next several
years, the Department of the Interior and the State of California will
complete a programmatic planning and environmental review process that
evaluates all of the actions expected to be taken to implement the
Settlement. Questions such as implementation strategies, priorities,
and performance measures will be addressed in the programmatic
document.
9. In addition to these funds, how much funding is likely to be
requested annually via the Energy and Water Development appropriations
acts?
Answer: Although the Settling Parties have agreed on a suite of
actions to be taken to restore flows and salmon runs, the total cost
and the specificity of those actions still contain significant
uncertainty. Reclamation anticipates that a multi-agency technical team
established to implement the Settlement would develop additional design
details typically found in a feasibility-level study needed to take the
proposed actions. We also anticipate that the estimated costs projected
to be required to meet the restoration goal (i.e. $250 million-$800
million) would be further refined during the initial phase of
implementation. Until those planning and engineering studies are
completed, it is premature to attempt to identify what additional
annual funding might be appropriate to request. Further, H.R. 24
specifies that any such additional federal appropriations would only be
available for expenditure as State and other non-federal funds become
available.
10. Can the Bureau reasonably be expected to meet the time lines
and deadlines of the Settlement and H.R. 24 with this level of expected
federal funding?
Answer: In the Settlement (specifically Exhibit C), the Settling
Parties acknowledged that the implementation timelines in the
Settlement are very ambitious, and are premised on a number of
assumptions. Meeting those timelines will require a high level of
cooperation from all levels of government, water agencies,
environmental groups, and private land owners. However, should a bill
such as H.R. 24 be enacted this fiscal year, federal funding should not
be the limiting factor in meeting the timelines as specified in H.R.
24.
Section 9(c)(2) of H.R. 24 directs future capital repayment
obligations of the Friant Division long-term contractors to be covered
to the San Joaquin River Restoration Fund. Friant long-term contractors
shall be credited for repayment, and the ``appropriate share'' of
existing federal investment in the CVP shall be reduced by an
equivalent sum.
11. Does this language protect other CVP water and power
contractors from having to absorb the construction cost repayment
allocated (but credited) to Friant contractors? Does it reduce the
amount other CVP water and power contractors are otherwise currently
expected to repay?
Answer: This language does not change or otherwise impact other CVP
water and power contractor obligations for project repayment.
Allocation of capital costs is a function of total CVP water delivered,
and, to the extent contractor deliveries fluctuate, the share of
capital will fluctuate as well. Capital costs are allocated to water
taken by Friant contractors. Friant contractors pay for CVP water
according to the existing rate-setting policies, and, in accordance
with those policies, the capital repayment will be credited
appropriately.
12. By crediting the Friant contractors for repayment, wouldn't
the total share of existing federal investment (allocated construction
costs) automatically be reduced by that amount?
Answer: Crediting will not happen automatically. Friant contractors
will receive credit for capital payments made and their prorated
capital repayment obligation will be reduced accordingly even though
the money is transferred into the newly established fund. The federal
investment is prorated to all CVP contractors. As drafted, the
legislation will assure that the overall federal investment will be
reduced to reflect the Friant payments.
13. Under this language, who (e.g., Friant contractors, other CVP
water and power contractors) gets credit for what?
Answer: The language does not change the process for crediting CVP
water and power contractors, including Friant contractors, for payments
made. Payments will be applied in accordance with the CVP rate-setting
policies.
Section 9(c)(4) directs that proceeds from the sale of water
pursuant to the Settlement be covered to the new San Joaquin River
Restoration Fund. Currently, under 3407(d)(2) of the CVPIA an annual
$25 per acre-foot charge is imposed on certain water sales and
transfers and is deposited into the CVPRF.
14. How much money has been collected from such water sales and
deposited into the CVPRF since 2002?
Answer: The amount collected from water sales under the referenced
section 3407(d)(2) from FY2002-FY2006 is $4,082. This is for monies
collected for M&I surcharges.
15. What ``proceeds'' from the sale of CVP water would be
available to be covered to the new San Joaquin River Restoration Fund?
Answer: The Settlement provides that the Secretary shall make
surplus water available to Friant Division contractors during wet
hydrologic conditions when water is not needed for the Interim Flows
and Restoration Flows at a total rate of $10 per acre foot. In
addition, if full Restoration Flows cannot be released by January 1,
2014, one option available to the Secretary is to sell or transfer the
remaining Restoration Flows, which might generate revenues. Proceeds
from each of those types of sales would be deposited into the San
Joaquin Restoration Fund.
16. Would these proceeds include the $25 per acre-foot charge
currently going to the CVPRF? If so, what affect would such have on
programs and project funded by the CVPRF?
Answer: No, the water to be made available at $10 per acre foot
will not include an additional $25 charge. The Friant contractors have
not to date been involved in the transfer of water that carried the $25
charge.
Section 9(d)(2) authorizes the Secretary to enter into agreements
that would allow the proceeds received from state issued bonds, loans,
or other financing mechanisms to be deposited into the San Joaquin
River Restoration Fund, and be repaid by Friant Division long-term
contractors (in lieu of making required deposits into the Fund).
17. How much money can be expected to be leveraged by using this
unusual financing mechanism?
Answer: The amount of funding that could be acquired through bonds
to implement the Settlement is unknown at this time. Factors such as
the type of projects as well as the timing and magnitude of the
projects will influence the pursuit of bond funding and the type of
bond financing and associated interest costs. Other factors such as
whether bonds may be tax exempt, the amount that may be issued relative
to a variable cash flow (revenue) repayment, etc., will also need to be
taken into account.
18. What are the advantages from entering this type of financing
arrangement with the state and Friant contractors? What are the
disadvantages?
Answer: Once construction activities are initiated, there is a
possibility that the annual funding requirements will exceed the amount
available. The advantage of this financing arrangement would be the
ability to access the amount of funding needed for construction at the
time it is needed. The disadvantages could be that interest cost would
be associated with accessing the funds earlier and the borrowing
capacity of the non-Federal agency could be affected.
19. What is the total expected state contribution to
implementation of the Settlement under H.R. 24?
Answer: State propositions 84 and 1E were passed by the California
voters in November 2006 and should provide at least $200 million of
State bond funds for projects that will directly contribute to the
restoration efforts
Restoration of Salmon Fisheries`
20. What was the value of the San Joaquin Chinook salmon fishery
(sport and commercial) prior to extirpation of the species, in then-
current, and in 2007 dollars?
Answer: To our knowledge, there has not been a comprehensive
analysis done that would adequately calculate the total value of the
San Joaquin Chinook salmon fishery prior to the extirpation of the
species. However, the recovery of San Joaquin salmon could move us
closer to de-listing the Spring Run Chinook.
21. The Settlement Agreement calls for restoring fall and spring
runs of Chinook salmon, yet Sec. 10 of H.R. 24 only addresses
restoration of spring-run Chinook. Will the fact that the bill does not
directly address restoration of fall Chinook salmon affect
reintroduction of fall Chinook as called for in the Settlement? Has a
decision been made that it is infeasible to restore both spring-run and
fall-run Chinook salmon, as provided for in settlements paragraph
14(a)? If so, please explain the basis for this decision.
Answer: No. The restoration goal for implementation has not changed
from what is described in the Stipulation of Settlement. Many of the
planned activities would benefit both spring and fall-run Chinook
salmon.
22. The report that would assess the success of the reintroduction
of salmon is to be made no later than December 31, 2024, under H.R. 24.
Why is the deadline 12 years after the expected introduction of the
experimental population in 2012? Will there be other reports or
monitoring that will gauge progress sooner or on a regular basis?
Answer: Given the three year cycle of salmon runs, variations in
conditions from year to year, varied habitats, and the need to
adaptively manage the system based on the observed responses of the
fish species, the restoration activities will need time to work to
allow the fish populations to respond. Subsequent to the reintroduction
of fish species, we anticipate monitoring and reporting on the progress
of the reintroduction efforts on a regular basis.
23. In the 1992 Central Valley Project Improvement Act, Congress
directed the Secretary of the Interior to develop a program to ensure
sustainable anadromous fish populations double their average from 1967-
1991 in 10 years; however, after 15 years, this goal has not been
achieved. Given the difficulty in meeting the obligations set out in
1992, how long will it take to restore to ``good condition'' an
extirpated species?
Answer: The goal in the Settlement is to fully achieve restoration
by 2025. This goal is based on estimated time to implement the complete
physical improvements in the River, initiate sufficient flows from
Friant Dam, and to adaptively manage the system based on the observed
responses of the fish species. Our modeling, monitoring and
experimentation is being set up to help accomplish this goal.
24. What other fish and wildlife species will benefit from this
restoration effort? Do they include other listed or candidate species
on federal or state endangered species lists?
Answer: During the next several years, the Secretary of the
Interior and the State of California, in consultation with other
agencies, will complete a programmatic planning and environmental
review process that evaluates all of the actions expected to be taken
to implement the Settlement. This programmatic review process will
assess the possible impacts, benefits, and costs from a system-wide
perspective, including other benefit opportunities that may be
achieved. In broad terms, we anticipate that a San Joaquin river that
flows year-round would produce a riparian corridor that could provide
habitat for a wide range of aquatic, avian and terrestrial species.
25. What recreation benefits might be realized from these
restoration activities?
Answer: During the next several years, the Secretary of the
Interior and the State of California, in consultation with other
agencies, will complete a programmatic planning and environmental
review process that evaluates all of the actions expected to be taken
to implement the Settlement. This programmatic review process will
assess the possible impacts, benefits, and costs from a system-wide
perspective, including other benefit opportunities that may be
achieved. In the Settlement, the Settling Parties acknowledge the
potential for increased recreational activities that may result from
implementation of the Settlement. We will also work closely with local
governments and the recreation community as they consider what
recreational opportunities they might pursue for the river corridor.
Experimental Populations Under the Endangered Species Act
Section 10(b) of H.R. 24 requires a determination by the Secretary
of Commerce as to whether a permit for an experimental population can
be issued for reintroduction of spring- run Chinook salmon under
Sec. 10(j) of ESA. The language in Sec. 10(j) of ESA, related to
experimental populations, states that these provisions are applicable
to introductions outside the current range of such species and wholly
separate geographically from non-experimental populations of the same
species. However, spring- (and fall-) run Chinook salmon reintroduced
into the San Joaquin River may inhabit portions of the Sacramento-San
Joaquin River drainage in common with other established Chinook salmon
populations.
26. Would any reintroduction of spring-run salmon to the San
Joaquin River be outside the current range and wholly separate from
nonexperimental populations of this species?
Answer: Our understanding of Section 10(j) is that ``wholly
separate geographically'' is not a criterion for release of an
experimental population.
Section 10(j) states that a released population can be regarded as
experimental ``only when, and at such times as, the population is
wholly separate geographically from nonexperimental populations of the
same species.'' The conference report accompanying the 1982 amendment
to the ESA that enacted 10(j) states: ``If an introduced population
overlaps with natural populations of the same species during a portion
of the year, but is wholly separate at other times, the introduced
population is to be treated as an experimental population at such times
as it is wholly separate.'' H.R. Conf. Rep. No. 835, 97th Cong. (Sep.
17, 1982). The possibility of overlap was specifically contemplated by
Congress in Section 10(j). The purpose for treating a released
population as experimental, with the lesser level of protections that
comes with that status, only when it was geographically separate from
natural populations was for the purpose of ``protect[ing] natural
populations and to avoid potentially complicated law enforcement
problems'' during times of overlap. H.R. Conf. Rep. 97-835.
27. Section Sec. 10(b) of H.R. 24 makes the reintroduction of
spring-run Chinook salmon dependent upon a discretionary finding by the
Secretary that such a permit can be issued. What are the guarantees
that the reintroduction will be allowed to proceed under this approach,
or if it is allowed to proceed, that it will not be legally
challengeable under a strict reading and interpretation of Sec. 10(j)
of the ESA?
Answer: We cannot guarantee in advance the outcome of any
deliberative process required by the Endangered Species Act without
violating the Administrative Procedure Act. The only requirement for
release of an experimental population under Section 10 is that the
Secretary find that such release ``will further the conservation of the
species.'' Given the potentially available resources in this
collaborative effort, we do not believe that standard will be difficult
to meet.
28. How will the introduced population be determined a success or
failure? What if the experimental population of salmon does not
succeed? Will this affect the terms of the Settlement? Will there be
changes in the restoration flows or water management activities?
Answer: Consistent with the legislation, the Secretary of Commerce
will report to Congress not later than December 31, 2024, on the
success of the reintroduction. That report is to set out an assessment
of the major challenges, if any, to reintroduction, as well as an
assessment of the future of the effort. In the Settlement, the Settling
Parties acknowledge that complete achievement of the Restoration and
Water Management Goals may not be possible during the term of the
Settlement (through December 31, 2025). For the restoration flows to be
changed prior to December 31, 2025, the Secretary can either: 1) use
water acquired from willing sellers to increase flows or 2) have all
the Parties agree to the change in writing.
29. Section 10(b) of H.R. 24 directs the Secretary to reintroduce
spring-run Chinook salmon pursuant to ESA Sec. 10j and the Settlement.
What potential conflicts exist between these prescriptions for
introducing salmon and how will they be resolved?
Answer: We do not believe there are conflicts between ESA Sec. 10j
and the Settlement. The Settlement states that reintroduction efforts
will be carried out ``consistent with all applicable law.''
30. The San Joaquin River supported spring and fall-run Chinook
salmon in the southernmost part of their historical range. Could
factors such as climate change or natural migration make it unlikely
for salmon to exist in the San Joaquin River when experimental
populations are assessed in 2024?
Answer: During the next several years, the Secretary of the
Interior and the State of California, in consultation with other
agencies, will complete a programmatic planning and environmental
review process that evaluates all of the actions expected to be taken
to implement the Settlement. This programmatic review process will
assess the possible impacts, benefits, and costs from a system-wide
perspective. This analysis will be based on the existing conditions and
the most-likely future conditions of the habitats occupied by the
reintroduced species.
Before a population is deemed experimental under ESA, it must be
determined to be essential or nonessential by the Secretary.
1 An essential population is defined as a population whose
loss would be likely to appreciably reduce the likelihood of the
survival of the species in the wild. All other populations would be
determined as nonessential. Nonessential populations shall not have
critical habitat designated; essential populations could have critical
habitat designated through a special rulemaking process.
---------------------------------------------------------------------------
\1\ The term Secretary under ESA refers to the Secretary of the
Interior or the Secretary of Commerce with respect to program
responsibilities for the species in question, unless otherwise
specified.
---------------------------------------------------------------------------
31. If the experimental population of Chinook salmon were
determined to be essential, and critical habitat designated, will this
modify federal water management activities on the San Joaquin River?
Will third parties be affected?
Answer: Our understanding is that if the experimental population of
spring run Chinook on the San Joaquin River were determined to be
essential, then they would be treated as a threatened species under the
ESA. Threatened species do not receive protection under the ESA until
the National Marine Fisheries Service promulgates a regulation under
Section 4(d) of the Act. Section 10(c) of H.R. 24 directs the Secretary
of Commerce to issue a final rule under Section 4(d) of the ESA
governing incidental take of the reintroduced salmon, and to provide
that the reintroduction not impose more than de minimis water supply
reductions, de minimis additional storage releases, or de minimis by-
pass flow requirements on unwilling third parties. Critical habitat for
spring run Chinook was already designated in 2005, and is not
coextensive with the range of the species.
32. Section 4(d) of ESA authorizes the Secretary to prepare
regulations to provide for the conservation of threatened species. Has
the National Marine Fisheries Service (NMFS) or Fish and Wildlife
Service (FWS) ever been directed by Congress to issue a 4(d) rule under
ESA for an experimental population?
Answer: We are not aware of any such Congressional direction in the
past, although we are aware of one instance where Congress codified a
proposed recovery activity for southern sea otters that included an
experimental population and various types of incidental take (Pub. L.
No. 99-625, 100 Stat. 3500).
Questions from Rep. Radanovich:
33. In testimony submitted for the record, Clifford L. Marshall,
Chairman of the Hoopa Valley Tribe, states that ``the Department of the
Interior has concluded that the San Joaquin settlement will harm third
parties including the Hoopa Valley Tribe and other beneficiaries of the
Trinity River Restoration program by causing annually up to a 25%
reduction in funds available from the CVPIA Restoration Fund.'' Has
Interior made such a determination? Please explain the effect the
Settlement Act would have on total funds available for environmental
restoration activities in the CVP, compared to those available under
the CVPIA.
Answer: Interior has not made a determination that there will be
any harm to third parties. On the contrary, under the proposed
legislation for the San Joaquin Settlement, the same amount of monies
will be collected for environmental restoration activities in the CVP
as is currently collected. However, under the Settlement, the Friant
``surcharges'' will be deposited to the San Joaquin Restoration Fund,
rather than into the CVPIA Restoration Fund. Based on a ten year annual
average, $7.5 million of the $44.3 million in total collections that
currently goes to the CVPIA Restoration Fund (approximately 17%) will
go to the newly created San Joaquin Restoration Fund. In addition, the
Settlement and legislation also provide for dedication of capital
payments, authorization of up to $250 million in additional federal
appropriations, and matching State funds for use for restoration of the
San Joaquin River. Absent the legislation, none of those funds would be
available for such a purpose. As a result, the legislation
significantly increases the overall funding available for environmental
restoration actions in the Central Valley Project. Based upon the ten
year annual average, $36.8 million per year would still be available
from the CVPIA Restoration Fund for CVPIA restoration activities,
including the Trinity River Restoration Program. Although this does
translate into a redirection of the funds available for appropriation
from the CVPIA Restoration Fund, Interior believes that this is more
than made up for by the overall increase in funding for restoration
activities and the fact that San Joaquin restoration activities will no
longer be funded out of the CVPIA Restoration Fund.
Question from Rep. Nunes:
34. If all of the other parties involved in the negotiations
concerning the form of H.R. 24 were to agree, would your organization
support an amendment of H.R. 24 authorizing the construction of pumping
and conveyance facilities required to implement the recirculation,
recapture, and reuse elements of the Water Management Goal of the
Settlement?
Answer: The Settlement calls for the Secretary, in consultation
with the other parties, to develop a plan for recirculation, recapture,
reuse, exchange or transfer of the Interim and Restoration Flows. The
Settlement also specifically provides that any such plan must not
adversely affect the Restoration Goal, downstream water quality, or
fisheries, and further must not impair the Secretary's ability to meet
his existing contractual obligations. Until that plan is developed in a
manner meeting those criteria, it is premature to consider whether
additional construction authorization might be required. Therefore,
Interior does not support such an amendment.
______
Mrs. Napolitano. Thank you, sir. And two things. First I
want to congratulate you for getting your testimony ahead of
time, which is a novelty in this committee.
And second, for your words and being able to work with the
parties that are involved. Because all we want is to be able to
help solve those problems and look for the solutions,
especially when coalitions are willing to give to be able to
get to that step. And in litigation, I am sorry, gentlemen,
only the attorneys win. So we look forward to working with you,
sir.
Next we have Nancy Saracino, Chief Deputy Director of the
Department of Water Resources from the State of California.
Welcome.
STATEMENT OF NANCY SARACINO, CHIEF DEPUTY DIRECTOR OF THE
DEPARTMENT OF WATER RESOURCES, STATE OF CALIFORNIA
Mrs. Saracino. Thank you very much. Good morning,
Chairwoman Napolitano and Members. It is a pleasure to be here
today.
I am appearing on behalf of the State of California to
express strong support for H.R. 24. I would like to highlight
three things in my testimony today.
The first is a brief summary of the basis for the state's
support for this legislation. The second is to discuss the
elements of the bill that are essential to the state's support
today. And finally, I would like to emphasize the importance of
early Congressional action on this, and how that relates to
leveraging state funding and ensuring uninterrupted progress
toward the restoration of the San Joaquin River.
We have a unique opportunity, with the resolution of this
longstanding litigation, to accomplish something significant
here, which is the restoration of an important Western river.
The state's support has actually been longstanding. We have put
resources and a lot of effort into hoping to settle this
litigation and be where we are today, which is proceeding with
an implementation of restoration.
The expressions of that support have included the Governor
Schwarzenegger letter, mentioned before, expressing the
importance of restoring flows and a healthy fishery at the San
Joaquin River. Also, Secretary of Resources Mike Chrisman
testified here in support of the settlement, and has charged
the Directors of the California Departments of Fish and Game
and Water Resources to look for opportunities to further
support the settlement and find funding to match the Federal
commitment that we are anticipating under this legislation to
make sure that the restoration is completed.
And finally, the voters of California have endorsed the
settlement by authorizing $100 million under Proposition 84 to
support the implementation.
The aspects of H.R. 24 that are critical to our support are
in three areas. The first is the provision that makes explicit
that Congress does not intend to preempt state law or modify
existing obligations of the United States to operate the
Central Valley Project in conformity with state law.
The second is those provisions that ensure that impacts
associated with the restoration efforts will be identified, and
measures implemented to mitigate them, for adjacent and
downstream water users and landowners.
And finally, those provisions of the legislation that
ensure that a rule regarding incidental take coverage will be
adopted, and reintroduction of the spring run will not impose
more than a de minimis impact on water supplies.
For the importance of early Congressional action, we are
actually on the ground working now to support the
implementation. Once the Judge entered that settlement, the
clock started to run. California had money in the budget. The
Federal government redirected monies. We have 14 state staff
working full time on implementation with a management team with
the Federal agencies.
The Legislative Analyst's Office has expressed concern
about the state moving ahead of the Federal government in our
efforts to restore this river. And while we are committing
resources today, it is very important that the full resources
of the Federal government also be brought into the mix.
We want to make sure that this restoration is successful.
Delay or any kind of interruption of progress will just make it
more expensive. And the planning process is critical with the
collaboration that we have underway. We believe that it is
important that we move together to ensure that we get started,
that we plan appropriately, and invest these monies in a way
that makes the most sense moving forward.
Thank you for the opportunity to speak today.
[The prepared statement of Mrs. Saracino follows:]
Statement of Nancy Saracino, Chief Deputy Director,
California Department of Water Resources
Introduction
Chairwoman Napolitano and members of the Subcommittee, I appreciate
the opportunity to appear before you today to discuss H.R. 24, the San
Joaquin River Restoration Settlement Act. I am here to convey the State
of California's support for this legislation.
As you know, the settlement that H.R. 24 would implement represents
unprecedented consensus on a process that will have lasting positive
impacts on the natural environment while protecting farmers and the
Central Valley economy. The settlement creates a clear obligation to
the settling parties, but more importantly, an incredible opportunity
to achieve a historical restoration of a western river.
The role of the State of California
Although not a signatory to the settlement, the State of California
has many interests in a healthy fishery and the successful restoration
of the San Joaquin River. To that end, we have already allocated a
considerable amount of our resources to facilitate restoration of this
important resource.
Recognizing the importance of an agreement that could set the stage
for restoration of the San Joaquin River, the state has expressed its
support throughout the process that ultimately resulted in the
settlement to be implemented by H.R. 24. In January of 2006, Governor
Schwarzenegger sent a letter to Secretary of the Interior Gale Norton,
in which he conveyed early state support for a solution to the long-
debated future of the San Joaquin River.
In September of last year, the State of California joined with
federal agencies and other settling parties to sign a Memorandum of
Understanding (MOU) to help implement the Stipulation of Settlement.
Soon after, California Secretary for Resources, Mike Chrisman presented
testimony at a hearing held by this Subcommittee which reaffirmed the
strong support of the state for the Settlement Agreement. This
testimony was followed by a letter from Secretary Chrisman to Senator
Feinstein on November 30, 2006, which reiterated the state's support
and outlined the state's financial commitment to the restoration
process.
California has already allocated $1.5 million dollars for
restoration activities in the current budget year. An additional $18.3
million in funding from prior bonds and Proposition 84, the Safe
Drinking Water, Water Quality and Supply, Flood Control, River and
Coastal Protection Bond Act of 2006, has been proposed in the
Governor's 2007-2008 budget to initiate restoration activities
consistent with the settlement.
Furthermore, as pledged in Secretary Chrisman's November letter,
the state is committed to looking for opportunities under Proposition
1E, the Disaster Preparedness and Flood Prevention Bond Act of 2006, as
well as other provisions of Proposition 84, in order to fund multi-
benefit projects in support of the settlement. For example, at least
$40 million dollars is available under Proposition 84 for water quality
improvement projects on the San Joaquin River.
Coordination and communication among parties
State agencies, including the Resources Agency, the Department of
Water Resources and the Department of Fish and Game, federal
implementing agencies and the settling parties have already begun
collaborating to plan, design, fund, and implement actions to support
the restoration of the San Joaquin River.
If Congress approves legislation implementing the settlement, the
Department of the Interior will be tasked with new responsibilities to
carry out the commitments made in the settlement to resolve the
longstanding litigation. It will be very important for the state to
coordinate closely with the Department of Interior to ensure that
planning on restoration activities is well coordinated and funds spent
in a way that optimizes the value of the investment of scarce
resources.
In addition, it will be important to ensure that a full and open
public process allows for all interested in the restoration efforts to
be heard as we move forward. Effective communication and coordination
among all parties early on and throughout the restoration will be a
challenge, but it is a challenge which must be met.
Progress towards implementation
Concurrent with the settling parties' signing of the settlement,
the State of California entered into a MOU which then became an
appendix to the Agreement and filed in federal court. The intent of the
MOU was to set out the initial framework for state collaboration with
the settling parties on implementation.
The MOU included two critical requirements. First, the Secretaries
of Interior and Commerce, along with the California Secretaries of
Environmental Protection and Resources, were required to establish a
process for the state and federal agencies to implement the settlement.
This requirement is important because the Stipulation of Settlement
assigns to the Secretary of Interior many restoration tasks that will
require California's participation and approval for them to be
achieved. We have established implementation teams with the federal
government and a process for coordination consistent with this
requirement in the MOU.
Second, the state and the settling parties are to establish a
mechanism to ensure public participation and input into the
implementation of the settlement. In addition to concern for the
environmental considerations of the restoration, the State of
California recognizes that there are many interested third parties
along the river and many that have already spent years working on
restoration efforts. To successfully restore this river, we must work
collaboratively with all of these interests.
Allow me to summarize progress to date in achieving the goals of
the MOU and settlement as well as significant coordination efforts
among the state and federal governments, the settling parties and other
interested and affected entities.
We are engaged with the settling parties in the process of hiring a
Restoration Administrator who will be charged with directing the
program manager, and will have the responsibility of assisting with the
overall implementation of the agreement. The Technical Advisory
Committee is also taking shape, Friant and NRDC have already appointed
representatives, and ex-officio state representatives have been
identified.
A five-agency Program Management Team has met on multiple occasions
and is making progress on a Program Management Plan. The Plan will
serve as the agencies' agreement for implementation of the restoration
plan and is expected to be completed by the end of April. A public
involvement process is being developed by the Program Management Team
to ensure the opportunity for input and participation throughout the
development of the plan.
The state is contracting with a nonprofit entity to oversee the
funding for the Restoration Administrator as well as other charges
related to the Technical Advisory Committee and public outreach.
Finally, work is underway to install additional water quality and
flow stations along the San Joaquin River for the purpose of monitoring
restoration efforts as they move forward.
In conclusion, we are pleased with the progress made towards
restoration thus far. In order to move forward and to begin to reap the
rewards of restoration the parties await the critical missing piece
necessarily for full scale implementation, and that is the proposed
legislation that is before you today.
Conclusion
The restoration of the San Joaquin River will have enduring
statewide and national significance. The rejuvenation of a critical
fishery, restoration of devastated habitat, improvements to the water-
delivery network for more than 22 million Californians and the
irrigation lifeblood for the productive breadbasket that is
California's Central Valley: this is what we can all look forward to as
implementation advances.
A discouragingly long battle in the courts has at last culminated
in what can truly be called a landmark settlement. The San Joaquin
River will once again become a living river, flowing as nature
intended, from its headwaters in the High Sierra all the way to San
Francisco Bay.
Chairwoman Napolitano and members of the Subcommittee: I urge you
to consider the paramount significance of this settlement, and I
respectfully ask for you to support this legislation and make the long
overdue restoration of the San Joaquin River part of your legacy.
Thank you.
______
Response to questions submitted for the record by Nancy Saracino,
Chief Deputy Director, California Department of Water Resources
STATE OF CALIFORNIA -- THE RESOURCES AGENCY
ARNOLD SCHWARZENEGGER, Governor
DEPARTMENT OF WATER RESOURCES
1416 NINTH STREET, P.O. BOX 942836
SACRAMENTO, CA 94236-0001
(916) 653-5791
March 15, 2007
The Honorable Grace F. Napolitano, Chairwoman
Subcommittee on Water and Power
Committee on Natural Resources
U.S. House of Representatives
1522 Longworth House Office Building
Washington, DC 20515
Dear Chairwoman Napolitano:
As you are aware, the Subcommittee on Water and Power held a
legislative hearing on the San Joaquin River Settlement Act in
Washington on March 1, 2007. I represented the interests of the State
of California at that hearing. Representative Devin Nunes had
additional questions directed to those who testified at this hearing.
The question directed to the state is answered below.
Question posed by Mr. Nunes: If all of the other parties involved
in the negotiations concerning the form of H.R. 24 were to agree, would
your organization support an amendment of H.R. 24 authorizing the
construction of pumping and conveyance facilities required to implement
the recirculation, recapture, and reuse elements of the Water
Management Goal of the Settlement?
Response: The State of California has committed to supporting both
the Water Management Goal and the Restoration Goal of the settlement
referenced in H.R. 24. While the settlement agreement and H.R. 24 set
out a framework for restoration of the San Joaquin River consistent
with the Water Management Goal, much work remains on identifying and
analyzing the alternatives for achieving the Water Management Goal
before any particular method is chosen. It is the state's understanding
that H.R. 24 as written would provide sufficient flexibility for the
Department of the Interior to implement appropriate actions to
accomplish the Water Management Goal once they are chosen through a
process that fully considers and mitigates for all impacts, including
those on the two water projects and other water users as well as the
environment. Therefore, the state does not believe that H.R. 24 should
be amended.
Thank you for this opportunity to address Mr. Nunes' question. If
there are additional questions please do not hesitate to contact me at
(916) 653-6055.
Sincerely,
/s/ Nancy Saracino
Nancy Saracino
Chief Deputy Director
cc: The Honorable Devin Nunes, U.S. House of Representatives
______
STATE OF CALIFORNIA -- THE RESOURCES AGENCY
ARNOLD SCHWARZENEGGER, Governor
DEPARTMENT OF WATER RESOURCES
1416 NINTH STREET, P.O. BOX 942836
SACRAMENTO, CA 94236-0001
(916) 653-5791
March 15, 2007
The Honorable George Radanovich
438 Cannon House Office Building
United States House of Representatives
Washington, DC 20515-0519
Dear Representative Radanovich:
We have received a copy of your letter dated March 9, 2007
addressed to The Honorable Grace F. Napolitano, Chairwoman of the
Subcommittee on Water and Power and The Honorable Cathy McMorris
Rodgers, Ranking Member. In your letter you requested answers to your
questions posed as a result of the legislative hearing on H.R. 24, the
San Joaquin River Restoration Agreement, held March 1, 2007 by the
Water and Power Subcommittee.
These questions were posed to those testifying on the San Joaquin
River Restoration Agreement and the state's response is below.
Question: In your testimony to the Water and Power Subcommittee of
the House Resources Committee on March 1, 2007 you mentioned that the
voters of California approved Proposition 84, which included $100
million for restoration of the San Joaquin River. Does Proposition 84
include any other funds that could be available for implementation of
the Water Management Goal of the Settlement and/or integrated water
management programs? If Proposition 84 includes such funds, which
procedures will be required for qualification for such funds?
Response: Proposition 84 allocates $100 million for restoration of
the San Joaquin River consistent with the terms of the settlement
agreement. In addition to the $100 million, there are additional
opportunities under Proposition 84 for funding programs that would
provide multiple benefits in support of the Water Management Goal as
set forth in the settlement agreement. Examples of such programs may
include, but are not necessarily limited to, funding for Integrated
Regional Water Management Plans, water quality improvement actions in
the San Joaquin River, land acquisition, urban streams projects and
flood protection. Fifty-seven million dollars is specifically allocated
under Proposition 84 for Integrated Regional Water Management Plans in
the San Joaquin hydrologic region. Integrated Regional Water Management
grants are available on a competitive basis and eligible projects must
be consistent with Department of Water Resources' guidelines.
Proposition 84 also allocates funds in various other areas,
including $40 million to be spent on actions to improve water quality
in the San Joaquin River, where we anticipate projects supporting San
Joaquin River restoration and the Water Management Goal would be
eligible to compete for grant monies. We anticipate that all
expenditures of state funds in the region will be made with an eye to
the state's commitment to support the settlement agreement, including
both the Restoration and Water Management Goals.
In summary, the State of California has already committed to
investing $100 million towards the restoration of our state's second
largest river. Furthermore, by funding multi-benefit projects from bond
funds in the Central Valley, we expect that the aggregate state
commitment to San Joaquin River restoration will easily reach and
likely exceed $200 million.
If you have additional questions please do not hesitate to call me
at (916) 653-6055.
Sincerely,
/s/ Nancy Saracino
Nancy Saracino
Chief Deputy Director
cc: Th e Honorable Grace Napolitano, Chairwoman, Subcommittee on Water
and Power
Th e Honorable Cathy McMorris Rodgers, Ranking Member, Subcommittee
on Water and Power
______
Mrs. Napolitano. Thank you, ma'am. Next we have the Hon.
Lois Wolk, Assembly Member and Chair of the Committee on Water
and Parks and Wildlife for the California State Assembly, and
to whom I have had the privilege to speak on numerous
occasions, but it is time for you to call me.
STATEMENT OF THE HON. LOIS WOLK, ASSEMBLY MEMBER AND CHAIR,
COMMITTEE ON WATER, PARKS, AND WILDLIFE, CALIFORNIA STATE
ASSEMBLY
Mrs. Wolk. With pleasure. Good morning, Madame Chair.
Congratulations to you on this first hearing, new session, and
what an auspicious event, to deal with H.R. 24.
I represent the northern part of the Sacramento San Joaquin
Delta, and I am very honored by your invitation to come here
and speak before the Subcommittee, which is our counterpart in
Congress. And both committees I know strive to balance the
protection of natural resources with often conflicting and
contradictory demands for water.
I am here as an ardent advocate for the settlement of the
longstanding dispute on the San Joaquin. I urge you to pass
H.R. 24 to implement the settlement.
This litigation, this fight that has lasted for a
generation has sapped the financial resources and political
energy of the litigants, as well as much of the California
water community. California can no longer afford the costs of
conflict on the San Joaquin.
Since I appeared here last September, much has changed.
First, Congress and the Subcommittee has changed substantially,
and I hope that that change will result in speedy passage of
H.R. 24, and more important, the beginning of a state/Federal
partnership in addressing the challenges that we find on the
San Joaquin.
Second--and reference has already been made to this--
conditions in the State of California have changed with the
passage of Prop. 84 and Prop 1E. Prop. 84 authorizes up to $100
million in general obligation bonds to support the settlement
on the San Joaquin River conflict.
Before that funding becomes available, the Legislature will
need to appropriate the funding through the budget. The
Governor, in his proposed budget, said that we should, and he
proposed that we spend $14 million beginning in July. That is
assuming, for those of you who served in the Legislature, that
we will have a budget in June. That may be harder to achieve
than the settlement, I don't know.
But I do appreciate, I do anticipate that the Legislature,
as was stated by my colleagues, that there may be some
difficulty in approving the appropriation without action by
Congress to approve and to implement the settlement. As my
colleague, Nancy Saracino, said, the Legislative Analyst's
Office raised some concerns and advised the Legislature last
week it shouldn't appropriate money until the Congress does.
Basically, we both have to act. We will walk through the door
together. We both need to act this year.
Finally, the settlement itself has changed, with the third-
party concerns now resolved by the language that is in H.R. 24.
And I, along with my colleagues here, congratulate Senator
Feinstein, Member Radanovich, and all of you who participated
in the resolution of these last-minute disputes.
Taking all that into consideration, it is time to act. A
significant portion of the California water community has been
preoccupied with this for decades, and it is now on the way to
resolution. It is over, and it is our duty to support this
settlement, and do all we can to restore the San Joaquin River,
as well as the interests that rely upon that water.
I hope that our two governments, state and Federal, can
find a way to collaborate in the most effective, balanced use
of the resources of the San Joaquin for agriculture and
fisheries.
With our two legislative bodies working together in
partnership, which is, I know, your intention, Madame Chair, I
have no doubt that this settlement will be a success. And thank
you again for inviting me to testify.
[The prepared statement of Mrs. Wolk follows:]
Statement of The Honorable Lois G. Wolk, Chair,
Committee on Water, Parks & Wildlife, California State Assembly
Good morning, Madame Chairman and members. My name is Lois Wolk and
I chair the California Assembly Committee on Water, Parks and Wildlife.
I also represent the northern part of the Delta. I am honored by your
invitation to appear today before the subcommittee, which is our
counterpart in Congress. Both committees strive to balance the
protection of our natural resources heritage with conflicting and often
contradictory demands.
I. Support for San Joaquin River Settlement
I appear before you today as an ardent advocate for settlement of
the long-standing dispute on the San Joaquin River. I urge Congress to
pass H.R. 24, which would implement the settlement. While the Friant
Division of the Central Valley Project has produced vast abundance of
agricultural products, it has produced substantial conflict as well.
The most recent litigation--and the one we all are here today to
resolve--has lasted 18 years, often sapping the financial resources and
political energy of the litigants as well as much of the California
water community.
I support the proposed San Joaquin River settlement because it
reflects a reasonable balance between water supply reliability and
River restoration. This settlement will confer benefits on many
Californians, not just the ones who have spent the last two decades in
court.
A. What Has Changed
Since I appeared here last fall, much has changed. First,
Congress--and this subcommittee--has changed substantially. I hope that
change will allow speedy passage of H.R. 24 and the beginning of a
state-federal partnership in addressing the challenges we find on the
San Joaquin River. While there are many other issues on the San Joaquin
River, including drainage, H.R. 24 needs to proceed now without trying
to resolve all the other thorny challenges on the San Joaquin. This
bill may provide a forum for developing a state-federal partnership
where we can work together to start addressing the many San Joaquin
River issues.
Second, conditions for the State of California have changed, with
the passage of Proposition 84, which authorizes up to $100 million in
general obligation bonds to support the settlement of the San Joaquin
River conflict. Before that funding becomes available, the Legislature
will need to appropriate the funding through the State Budget. The
Governor's budget proposes that we spend $14 million next year in
support of the San Joaquin River settlement. I anticipate that the
Legislature will have concerns about approving that appropriation,
without action by Congress to implement that settlement. In fact, just
last week, the Legislative Analyst's Office advised the Legislature
that it should not appropriate money for the San Joaquin River
restoration until Congress appropriates funding for the restoration.
So, effective implementation of the settlement through a state-federal
partnership will depend on the Congress' timely action.
Finally, the settlement has changed, with the third-party concerns
now resolved by language that is in H.R. 24. When we were last here,
some witnesses objected to potential risks of adverse consequences to
third parties. Those parties and the settling parties, working with
Senator Dianne Feinstein, developed the language that is now in H.R.
24. We may not all agree that this language is necessary substantively,
but we all can agree that resolving those disputes makes an important
contribution to achieving--and implementing--a settlement that works
and enjoys success. We don't need further litigation over this
settlement, as some witnesses threatened at the last hearing.
Taking all these changes into consideration, the time has come for
Congress to act. We have resolved a conflict that has sapped the energy
of a significant portion of the California water community for decades.
That conflict is over, and it is our duty as elected representatives to
do all we can to support that settlement.
B. Value of Resolving Long-Standing Conflict
This settlement offers all of us an opportunity to move beyond
conflict. Water conflicts--particularly court litigation--simply cost
too much. It costs money to pay our advocates--the lawyers and expert
witnesses. It costs time and missed opportunities. As we fight, we too
often ignore the continuing and changing needs to operate, maintain and
rebuild the water infrastructure that may have served us well in
another time. But with improved technology and increased value for each
drop of water, we need to invest in creating the most efficient water
system possible--one that balances the many competing water needs--
agricultural, urban and environmental. Moreover, the inherent risks of
litigation put the use of our water resources and water supply
reliability in jeopardy.
Finally, as we fight, the ecosystem collapses. The public trust
resources that we have a duty to protect deteriorate. California cannot
afford the costs of conflict. That's why I'm here today to urge you to
support H.R. 24, which will let California move beyond this long-
standing conflict.
I hope that our two governments--state and federal--can find a way
to collaborate on promoting the most effective and balanced use of the
San Joaquin's water--for agriculture, cities and the fishery. Only
recently did the Schwarzenegger Administration begin investing time,
attention and resources on improving the situation on the San Joaquin.
I am proud to be one of the legislators who fought for State funding in
this year's budget to support this settlement. I was also encouraged to
see that the draft legislation includes a ``savings clause'' for
existing federal law requiring Central Valley Project compliance with
State law. This provision will protect the State's sovereignty and
ensure the State's proper role in overseeing the San Joaquin River's
water resources.
C. Settlement Helps Resolve Multiple San Joaquin River Issues
I would like to share a broader perspective about how this helps
California as a whole.
Certainty for Water Users. First, there is the added certainty for
water users throughout the San Joaquin River basin. For more than a
decade, we have crafted water agreements that would allow for some
uncertainty due to this litigation. The Federal Government and water
users on San Joaquin tributaries crafted the 1998 San Joaquin River
Agreement, often called the VAMP (or the Vernalis Adaptive Management
Program), leaving some flexibility for an outcome of this litigation.
The State's Delta water quality standards were imposed on all the
Central Valley Project permits, to allow for the possibility that water
might some day come down the mainstem from Friant to the Delta. This
time of bracing for uncertainty can now end, and we can begin the
conversation about how to promote greater water certainty throughout
the San Joaquin system.
Assistance for Fishery Resources. And, of course, this settlement
will help the San Joaquin system's fishery resources. I understand
there may be some who question how much the water released under this
agreement will help the spring run and, perhaps, may not help fall run
salmon at all. But let us keep in mind our starting point--a dead
river--and a basic fact--fish need water for life. Breathing life-
giving water back into this river--even if not as much as some
suggested would be required--is better for the fishery than dry sand.
This water will contribute to the fishery needs in the San Joaquin
River and downstream in the Sacramento-San Joaquin Delta.
Diluted Salinity. This infusion of water also contributes to
diluting the salinity flowing downstream from the westside of the San
Joaquin Valley to the Delta. Some of you may remember the Kesterson
wildlife debacle when the last drain operated in the 1980's. While some
have suggested that we tie this settlement to resolving the drainage
issue, it is more important that we proceed with the settlement now
than try to resolve all San Joaquin River issues at one time. This
settlement will contribute a new water resource to this chronic
salinity problem on the San Joaquin and in the Delta. Even a small
contribution will nevertheless be a contribution.
Flood Protection. While flood protection was not one of the
original purposes, some of the actions required by the settlement will
improve flood protection, particularly the expansion of the River's
capacity to 4,500 cfs at various points. Last year, the small town of
Firebaugh suffered a huge risk that its levees would fail and deluge
the town. This settlement provides a small indirect flood protection
benefit that, in these years after Hurricane Katrina, may be
appreciated.
II. Benefits for the Sacramento-San Joaquin Delta
This settlement's benefits reach beyond the confines of the San
Joaquin River, particularly to the broader Sacramento-San Joaquin River
Delta--California's Critical Crossroads for water. I note that the
Delta's name includes the San Joaquin River. The Delta is formed by two
of California's great rivers--the Sacramento AND the San Joaquin.
Admittedly, the settlement was not necessarily intended, nor are there
any commitments, for the benefit of the Delta. But, when you begin
moving toward a healthier river, the Delta cannot help gaining some
sort of benefit, albeit unquantified.
A. Delta
The Delta currently suffers from two inter-related problems--water
quality and an ecosystem crisis. The Delta's water quality issues are
multi-faceted, involving salinity (both drainage and saltwater
intrusion), contaminants (including pesticides, mercury and urban
runoff), and water circulation or flow standards. Increasing the
availability of San Joaquin River flows will, in any case, contribute
to improving water quality in the South Delta, where the San Joaquin
River flows into the Delta.
Also, in the last year, the State has been investigating the causes
of the substantial decline of pelagic fish (e.g. delta smelt) and much
of the ecosystem that supports them. We still do not have final
answers, but we have seen indications that three categories of causes
have contributed to this decline--invasive species, contaminants and
water project pumping operations--and we have recognized that there are
connections among all three of those categories. Last fall's CALFED
Science Conference demonstrated that the water project exports play the
central role in affecting the ecosystem--both directly (taking fish
into the pumps) and indirectly (changing Delta hydrological flow
patterns). Those categories also share a connection to the flow of
water into and within the Delta. The cause of the decline is likely
related to all of these causes. So, the best news is that introducing
additional flows into the Delta may assist California in addressing the
root causes of the Delta ecosystem crisis.
B. Export Water Supplies
Because California's export water communities--in the San Joaquin
Valley and Southern California--rely on water exported from the Delta,
any assistance the Delta receives can help the water supply reliability
for export water supplies. They had concerns that they may suffer
negative impacts, but H.R. 24 now has addressed that issue to their
satisfaction. It may help the two large water projects comply with the
interior Delta salinity standards. Or the additional San Joaquin River
inflows may improve the export-inflow ratios that regulate export-
pumping operations. In either case, export water supply may improve
because there is more water flowing into the Delta.
III. Next Steps
The next steps to implement the San Joaquin River settlement
involve both of our legislative bodies. First, California needs the
Congress to enact H.R. 24 to implement the settlement, including
elimination of the CVPIA prohibition on Friant releases for these
purposes. Then, I can assist the effort in the California Legislature
to enact other supportive legislation and budget appropriations to
advance the settlement's implementation. For example, one of my
colleagues, Jared Huffman, who chairs the water quality committee and
sits on my committee, introduced a short provision to authorize the
State to participate in this settlement. There will be additional work
needed on this bill, which may respond to how Congress acts. The
Federal Government needs to act first, considering its long history of
controlling the operation of the main stem of the San Joaquin River. I
have supported state legislation to start addressing San Joaquin River
issues in this past session, but, before the settlement, it did not
enjoy the necessary broad support that today's settlement may provide.
With our two legislative bodies working together, I have no doubt that
we will succeed in making this settlement a great success!
______
Response to questions submitted for the record by Rep. Devin Nunes to
Assemblywoman Lois Wolk, Chair, Assembly Committee on Water, Parks &
Wildlife, California State Assembly
Question Submitted by Mr. Nunes (CA) to all witnesses:
If all of the other parties involved in the negotiations concerning
the form of H.R. 24 were to agree, would your organization support an
amendment of H.R. 24 authorizing the construction of pumping and
conveyance facilities required to implement the recirculation,
recapture, and reuse elements of the Water Management Goal of the
Settlement?
Response of Honorable Lois Wolk, Chair, Assembly Committee on Water,
Parks & Wildlife
At this point, the most important task for Congress is completing
the San Joaquin River settlement by passing the San Joaquin River
Restoration Settlement Act. Upon passage, the State and the Federal
Government will be able to effectively work together on implementing
the settlement, which includes both river restoration and water supply
improvements. It is during implementation that the pumping and
conveyance facilities you have proposed would best be analyzed,
consistent with federal and state laws requiring feasibility studies
and environmental documentation. While I cannot speak for the entire
California State Assembly, I would support pursuing further
investigation of such facilities--after passage of the federal
authorization statute.
______
Mrs. Napolitano. Thank you so very much, Mrs. Wolk. Before
we move on to the question-and-answer period, I would like to
receive for the record the testimony of Clifford L. Marshall,
Chairman of the Hoopa Valley Tribe, which was given to me. It
is his statement on this issue.
So without objection, I will order the receiving of this
testimony.
[NOTE: The statement submitted for the record by Clifford
L. Marshall, Chairman, Hoopa Valley Tribe, has been retained in
the Committee's official files.]
Mrs. Napolitano. OK. So first of all, Mr. Dooley, one of
the issues that, in reading some of the testimony given, I have
a question that deals with a new water management report which
discusses the options for more aggressive groundwater
management and/or groundwater banking.
Does it have that in there? Because I could not find
something.
Mr. Dooley. I am sorry, the question is does the report
include----
Mrs. Napolitano. The options for more aggressive management
and banking for the groundwater.
Mr. Dooley. Absolutely. There are a number of programs that
are regional programs, including a number of different
districts that include additional groundwater banking programs.
There are also individual groundwater banking programs included
in the report. In fact, of the district-generated proposals,
additional groundwater recharge and banking are the dominant
types of programs that are included in the report. So there are
several different proposals that are included in this document
that deal with expanded groundwater banking and recharge.
Mrs. Napolitano. Makes good bedtime reading.
Mr. Dooley. I didn't find that to be the case.
[Laughter.]
Mrs. Napolitano. Mr. Candee, the question that I have for
you, sir, is, what is the economic benefit timeframe? Because
we know there is an economic benefit. But what is the timeframe
for a recovered salmon fishery in the San Joaquin River? And
have any studies been done to gauge that economic benefit or
effect?
Mr. Candee. Well, actually, I think Mr. Dooley mentioned
that before the settlement negotiations began, we were all
preparing for trial. And in preparation for trial, all of the
parties brought in economists to analyze both the impacts and
the benefits. And so there actually has been some analysis
about other river systems, and how restoring the river can
provide economic benefits, not just for the fishing industry,
but also for recreation, for water quality, for other farmers
downstream, for example.
I don't know if any studies have been done specifically on
the restoration of these two salmon species on this river. The
river has been dry for 60 years. But the analysis of economic
benefits from restoration programs is out there, and it is
cited in that expert report.
Mrs. Napolitano. And that has been shared with the rest of
the parties.
Mr. Candee. Yes. All of the parties have it, and I would be
happy to make it available.
Mrs. Napolitano. OK, great. Thank you.
Mr. Peltier, has the Interior Department requested funding
for the San Joaquin River Settlement in the Fiscal Year 2008
budget? If so, how much money? And then, of course, what will
the money be used for? And what happens if this authorizing
legislation, which I hope is not the case, is not enacted, will
the Department be able to spend the money on implementing the
settlement anyway?
Mr. Peltier. Yes. In the President's 2008 budget proposal,
we identify $17 million for funding the restoration program.
There are some other, there are other monies within the region
that, such as the monies we are using now to get kick-started
some of the planning efforts. But there is that $17 million
identified, along with the commitment of the Administration to
send up authorizing legislation that would make possible the
expenditure of that money. It will not be possible without the
passage of authorizing legislation. H.R. 24 is legislation that
will make possible the expenditure of that money.
Mrs. Napolitano. So the funding hinges on the passage.
Mr. Peltier. Yes.
Mrs. Napolitano. Thank you, sir. I think I will yield to my
Ranking Member.
Mrs. McMorris Rodgers. Thank you, Madame Chairman, and
thank you, everyone, for being here. I certainly applaud the
effort to reach an agreement. It is very difficult, to say the
least, and I understand some of those challenges, coming from
Washington State. And without a doubt, it is much better to
reach this settlement among ourselves, rather than allowing the
Court to be the one dictating.
We have had that experience most recently. I mentioned it
in my opening remarks, but we do have an example where, per a
judge out of Portland, we are spending--we did, in 2004, spend
over $3 million per Chinook salmon because it was a court-
mandated spillover in the Columbia Snake River system.
So my question to all the witnesses on the first panel is,
having the settling parties, I wondered if in the settlement,
have the parties defined what success is when it comes to river
restoration and salmon reintroduction? And what benchmarks will
be in place to determine future success?
Mr. Candee. I would be happy to take the first stab at
that, but I am sure others will want to add to it.
There are several answers. First of all, a process has been
set up by which the Federal fish agencies and the state fish
agencies, and also the parties, the settling parties, through a
technical advisory committee, will try to develop interim
targets and long-term targets to try to guide the restoration
program.
But second, there is a reopener in the settlement which was
carefully negotiated by all of the settling parties, in which
if any party seeks to change the fundamental terms of the
settlement after 2025, that the State Water Board would be
asked to make a series of findings. And it is not just on the
success of the restoration program, but also the success of the
water management program and the reasonableness of any changes.
And so those were actually spelled out in the settlement
which the legislation would be approving. So all of that is in
there, and we hope the fishery agencies and the other parties
are going to be moving very quickly to start developing some of
these long-term targets.
Mr. Dooley. Maybe if I could just add a little bit. And I
will be very candid. The experts for the Friant community and
the experts for the Plaintiffs did not agree on what level of
success could be achieved. I think our experts believe that you
can restore fish, but perhaps not as many as the Plaintiffs'
experts.
And we don't anticipate reintroducing fish until 2012. And
as Mr. Candee said, the approach in the settlement is that a
technical committee composed of people who really know what
they are talking about.
I practiced a lot of fishery biology in the last 18 months,
but the people who are really fishery biologists are going to
sit down and try to develop metrics that will define whether we
are achieving our goal or not.
Further, I would say there is a provision in the settlement
where we acknowledge that there are benefits other than simply
restoring a fishery, to restoring flows to the river. And we
acknowledge that, notwithstanding our best efforts, we might
not be successful in the fishery. So there is an acknowledgment
that it is a challenging effort, but we are all committed to
try to make it happen.
Mrs. McMorris Rodgers. Is there a concern, because this
hasn't been defined clearly, what success is, or what the
benchmarks for success will be at some point in the future,
when the money is gone, that we will be in litigation again as
a result of not having this defined now?
Mr. Dooley. Let me say that the structure of the settlement
does not provide an opportunity to relitigate these issues. It
resolves the issue pursuant to the terms of the settlement.
The only option really is to seek to adjust flows in the
river, in 2026 or thereafter. And that is through a defined
process that Mr. Candee mentioned. It was very, very important
to the Friant community that this matter be removed from the
jurisdiction of the Federal Courts. And we have tried to do
that, to the extent we can.
Furthermore, our interest, candidly, in seeing this succeed
is tempered in substantial part by the assurances we have on
the limit of the water supply committed to the effort, and the
agreement of all the parties to cooperate in making sure that
we do what we can to recirculate that water and recapture it
for use within the Friant service area.
So that was our principal motivation. And we think we have
achieved the highest level of certainty that we could within
the context of this litigation.
Mrs. McMorris Rodgers. Yes?
Mr. Peltier. I would just like to more broadly speak to the
challenges we face when investing in environmental improvements
across the West. It is very common. You have had a lot of
experience with it in the Central Valley of California, between
the Central Valley Project Improvement Act Restoration Fund,
expenditures of over $600 million, and the CALFED expenditures
for ecosystem, we totaled well over $1 billion of investment in
a little over a decade in ecosystem improvement. Primarily that
investment has been focused on fisheries.
And yes, there is this tremendous uncertainty we live with.
And giving performance measures, getting metrics, is something
the managers are constantly asking, constantly demanding. The
CALFED Science Board has had numerous reviews to try and
identify what investments are producing what returns. And it is
very difficult.
We can see habitat improvements. We can see blocks to fish
passage eliminated. We can see improvements. But what the
result, what the population level effect of our investments is,
is something that will be determined over the generations of
fish, and over the generations of future water management
practices. And that uncertainty is something that we are forced
to live with. Because it really is, there are many alternatives
to how we spend the money, but there is no alternative to
attempting to address the ecosystem problems.
Mrs. McMorris Rodgers. OK. Thank you very much.
Mrs. Napolitano. Thank you. Now we will move on to Mr.
Costa.
Mr. Costa. Thank you very much, Madame Chairperson.
A couple of different focuses. First of all, Mr. Peltier,
you talked about the funding level. You are really relating to
administrative costs, right, when you are talking about the
implementation of this agreement?
Mr. Peltier. Well, no. There are----
Mr. Costa. But the bulk of the restoration efforts as a
part of this agreement are going to come from the redirection
of the restoration fees that are currently being paid by the
Friant water users.
Mr. Peltier. Right. And capital and diversion of capital
repayment.
Mr. Costa. Right.
Mr. Peltier. Both of those are proposed in the President's
budget to occur in 2008. That is the $17 million. And that will
go to----
Mr. Costa. And so have you estimated what your
administrative fees are going to be on this?
Mr. Peltier. Higher than we would like.
Mr. Costa. Shall we use the typical gold plate of 20
percent for Bureau projects?
Mr. Peltier. No.
Mr. Costa. Good.
Mr. Peltier. Unacceptable.
[Laughter.]
Mr. Peltier. But I have a regional director, Kirk Rogers,
here with me to address his----
[Laughter.]
Mr. Peltier. What it costs him to get the job done. It is a
simple reality that we have to deal with.
Mr. Costa. But seriously, though, we would like to get a
much greater handle on frankly what those are. Because I really
view that, in my mind, separate and distinct from the actual
dollars that have been committed for the totality. And I know
there are differences of opinion on how much it is ultimately
going to cost for restoration, depending upon it, because the
goals have already been discussed here.
But the bulk of the funding for the restoration efforts,
would you not, or would you agree, is the $100 million from the
state bond, and the Friant water users restoration fee that is
going to be redirected for the purpose of restoring the river?
Mr. Peltier. Yes. And the capital repayment. The bill does
authorize additional Federal appropriations, which would be, we
anticipate----
Mr. Costa. No, I understand that.
Mr. Peltier. OK.
Mr. Costa. No, I just want to make sure we get a handle on
the administrative costs, because I think that is important.
Has DWR, Mrs. Saracino, looked at your administrative
costs? Separate of the $100 million?
Mrs. Saracino. We are actually capped. Yes, we are capped
on expenditure bond costs at 5 percent for administrative
costs.
Mr. Costa. Maybe we ought to apply that on the Federal
level.
Mrs. Saracino. And we do manage to come in under that. Most
of the expenditures we see going into actual project
implementation, digging out the dirt, changing the facilities,
constructing new levees, bypasses, et cetera.
Mr. Costa. Right. As it was alluded to earlier, I believe
it may be Assembly Member Wolk's comments with the legislative
analyst on the State of California, Elizabeth Hill, who many of
us worked with before, and I think she does a very good job. In
reading some of the press accounts last week about her
recommendations, holding off to the state, I mean, I think it
needs to be clear, and I hope, as the Chairman of the committee
and member of the Assembly, that you will indicate that, I
mean, notwithstanding our process here on the enabling
legislative authorization, and in subsequent appropriation,
that the Legislature and the budget analysts recognize that the
$100 million has already been passed, as you stated in your
testimony, by the voters, and the Friant water users, as a part
of the settlement agreement, have already committed. Therefore,
we obviously have to enact it to redirect those funds.
But this, unlike a lot of Congressional authorizations and
appropriations where we have to create the box and then
appropriate the money, this is different in that sense.
Mrs. Wolk. Mr. Costa, I understand your concern. We have a
great deal of respect in California and the legislature on all
sides, both sides of the aisle, for Elizabeth Hill. We don't
always follow her advice, however, and there has been a
tremendous amount of support, budgetary support, from the
Administration, and from the legislature, for engaging in the
settlement. And I have full confidence and will support the $14
million that is proposed by the Governor in his budget. And I
feel that the Assembly, and I believe the Senate, will, as
well.
Mr. Costa. All right. Thank you very much.
Mrs. Wolk. Again, if we have a budget.
Mr. Costa. Yes. I see my time is--do I? OK, wonderful.
Let me get to the area of the holding contracts and try to
cover that quickly.
When we discussed in great detail third-party impacts, as
Congressman Cardoza and Congressman Nunes and Radanovich and
the rest of us that were a part of those discussions in
September with Senator Feinstein, it didn't come to my
attention until after we had concluded those meetings about the
holding contracts.
And I would like both Mr. Peltier, as well as Mr. Dooley,
to comment, why does the settlement assume that downstream
diversions will continue at their current levels? Because we
are talking about 120,000 acre-feet of water approximately that
has been continuing to flow down the river since Friant Dam was
built. That 120,000 acre-feet has, based upon the agreements
when the dam was completed, has served water users that now we
refer to as holding contracts. And their concerns about their
impacts, third-party impacts, I think are important.
Could you please tell me your view as it relates to those
holding contracts?
Mr. Peltier. I will simply say that we believe that H.R. 24
does protect the interests of the holding contract folks, and
there is no question about it in our mind: about the validity
and the ongoing obligations and responsibilities the project
has to those people.
But maybe Dan, who has been engaged in some one-on-one
discussions that I have not been involved with, would have more
to offer on that.
Mr. Dooley. Mr. Costa, actually the settlement agreement
itself has direct provisions in Exhibit B, which are the
hydrographs upon which the flows are built. That assumed that
the holding contractor leases that historically occurred will
continue to be made for the purpose of the holding contractors,
and the hydrographs are identifying additional releases that
would be needed on top of that for the purpose of restoring the
river.
Further, that the structure of the agreement is that there
are releases at the dam, and then there are measuring points
downstream, that, where specific flows are----
Mr. Peltier. All the way to Gravelly Ford.
Mr. Dooley. Well, beyond even Gravelly Ford.
Mr. Peltier. Right.
Mr. Dooley. And if the releases at the dam are insufficient
to meet those downstream requirements, then the Bureau has an
obligation under the settlement agreement to increase the
releases at the dam to meet the required flows downstream.
So to the extent a holding contractor is exercising their
contractual right to divert from the river, and that affects
the downstream measurements, then additional releases are
required. And that is built into the settlement.
So I think, from our perspective, the settlement provides
greater protection to the holding contracts than any other
water user, because of the way the release schedules are
required to be met.
Mr. Costa. Do you concur, Mr. Candee? Just say yes or no.
Mr. Candee. I do, actually.
Mr. Costa. OK, thank you. And Madame Chairman, I know my
time has expired. I have some questions I would like to submit
for the record, as it relates to further questions on the
holding contracts.
Mrs. Napolitano. OK. Without objection, so ordered.
Mr. Costa. Thank you.
Mrs. Napolitano. Mr. Radanovich.
Mr. Radanovich. Thank you, Madame Chair. I just have one
quick question of Mr. Dooley.
Mr. Dooley, Friant Water Users Authority, can you kind of
give us a little bit of background on what they are? Why were
they created, for what purpose were they created? How many
districts? What was their support of this agreement? Was it
unanimous? Was it a split decision? Can you give me a
background of Friant and their support of this thing?
Mr. Dooley. Well, let me say the Friant Division of the
Central Valley Project extends from the Chowchilla Water
District north of Madera to the Arvin-Edison Water Storage
Districts south of Bakersfield. And it involves diversions from
Millerton Lake behind Friant Dam into the Friant Kern Canal
south, and into the Madera Canal North, which serves the Madera
Irrigation District and Chowchilla.
There are 28 long-term Friant contractors. There are 22
long-term contractors who are members of the Friant Water Users
Authority. All 22 members of the Authority endorse the
settlement. The Friant Water Users Authority endorse the
settlement. And to the best of my knowledge, of all of the 22
boards of directors who considered the settlement, there was on
no vote, and that related to the extension of the Friant
surcharge, not to the substance of the settlement.
So I am very confident in appearing before you today in
saying that there is unanimous support among the members of the
Friant Water Users Authority for this settlement, and in a
strong view that we do not want to go trial on the remedy and
put the matter back in the hands of Judge Carlton.
Mr. Radanovich. Thank you very much. That is all.
Mrs. Napolitano. Thank you. Mr. Cardoza? You pass. Mr.
Nunes? I don't have any on my side.
Mr. Nunes. Thank you, Mrs. Napolitano. Mr. Dooley, I have a
specific question for you here.
Friant has a document, this one here, ``Potential Programs
and Projects,'' that was submitted by you for the record. As I
understand, the intent of this document is to outline potential
projects for the implementation of the water management bill.
On page 3 of the document it says that NRDC and Friant
previously prepared a water supply report that considered
various options to achieve this objective, and I think that is
referring to the water management goal in the settlement.
Was the trans-valley canal one of the conceptual projects
NRDC and Friant considered?
Mr. Dooley. It was not prepared--let me make a
clarification, Mr. Nunes. That reference to a water supply
report is not in connection with this settlement effort. It was
prepared in connection with a settlement effort that candidly
blew up about four years ago.
And I don't recall if it was called the trans-valley canal.
My recollection is there was a new cross-valley facility,
though, that was considered as one of the options in that water
supply report.
Mr. Nunes. And I understand that, Mr. Dooley. But was NRDC
made aware of this plan?
Mr. Dooley. The water supply report that was prepared in
the prior settlement process was a jointly prepared document.
It was prepared by a contractor under joint contract with NRDC
and Friant.
Mr. Nunes. So it may have been called something else, but
it was talked about.
Mr. Dooley. Right.
Mr. Nunes. So, Mr. Candee, you referred to everyone, all
the people party to the settlement have signed what you called
a blood oath in your testimony. If everyone was to agree, all
the other parties, that the trans-valley canal needed to be
built, why not authorize it in this settlement? Make an
amendment to H.R. 24, authorize the trans-valley canal?
Mr. Candee. You know, until I received the Friant document
a day or two ago, I am not sure I ever heard the term trans-
valley canal, and I frankly can't remember whether the
proposals that were considered in the water supply study--there
were 73 that we went through--included the same location and
everything. And my understanding is that Friant just prepared
this document very recently. So I don't think anyone has
actually----
Mr. Nunes. I mean, you have committed to the water
management goal, Mr. Candee.
Mr. Candee. Right.
Mr. Nunes. And you know my issue with the settlement is
that there is no way in this settlement to get the 200,000
acre-feet back, OK?
Now, what I am trying to ask is, wouldn't it be worth
looking at some concrete objectives? You know, maybe some of
these that are in here, in the next two months, three months,
as this bill moves its way through the Congress, that everyone
sit down and all agree that yes, let us try to get some of that
200,000 acre-feet back. Would you support any of that?
Mr. Candee. Congressman, I think it was, as Congressman
Cardoza pointed out, there is a phased approach in this
settlement. And the full flows don't even begin for quite a
while. And the document from Friant----
Mr. Nunes. Mr. Candee, though, I mean, it is just a yes or
no question. Why can't you just be willing to support something
concrete that we can put into law, that has teeth, so that we
can get the water back?
Mr. Candee. Let us give an example where CALFED had the
idea to let us build a storage project called Delta Wetlands.
And they spent a lot of money studying it, and everybody
thought that sounds like an interesting idea. And when it was
all done, guess what? They couldn't find anybody, anybody----
Mr. Nunes. Yes, but what you are saying is a feasibility
study. And this settlement doesn't even have a feasibility
study.
Mr. Candee. I am not aware of any party that is asking
right now for Congress to amend this settlement to pre-
authorize a project that until a few days ago nobody had even
heard about as a proposal, and hasn't been studied or even
endorsed, as far as I know, by the----
Mr. Nunes. Only the parties that you ignored. Only the
parties that were ignored, that happen to be my constituents.
Mr. Candee. I am not aware--we did so much----
Mr. Nunes. Only those parties that every elected official
in Tulare County has submitted a request to have concrete
mitigation to protect their water supply.
Mrs. Napolitano. Mr. Nunes, would you allow the gentleman
to finish? And then you can proceed.
Mr. Nunes. I will, but I don't want him to burn the time
out.
Mrs. Napolitano. Well, the way it is being timed, the only
time is your questions, not his.
Mr. Candee. Thank you. The water management goal provision
which is the subject of the proposal that Friant just came
forward with. But there is also a separate second plan called
the recovered water account, in which NRDC agreed to reduce the
price of Federal water and make it available to those districts
who were putting up water.
Mr. Nunes. It was never your water to agree to lower the
price on.
Mr. Candee. We are asking Congress.
Mr. Nunes. So you are supporting it, OK. I just wanted to
make sure you knew that was the people's water; NRDC doesn't
own it.
Mr. Candee. I couldn't agree with you more. That is the
people's water, and believe me, that is very clear.
But the idea there was to encourage further groundwater
banking. We have heard a lot of support from a number of
members for expanded groundwater recharge and groundwater
banking.
These programs, the Federal government has committed to
developing a plan on the recirculation side. I think what
Senator Feinstein was asking Friant to do was help jumpstart
that process with some ideas. I think some of the proposals
that Friant put forward are new ideas. Some of them have been
around for a while. As we mentioned, Friant and NRDC spent a
lot of time trying to study these different ideas, but I don't
think any of them yet are ready for Congressional action in
terms of Congressional----
Mr. Nunes. Well, Mr. Candee, my time is up here, and we
have a vote on. But in the spirit of working together, if you
truly want to work together, then why not bring the cities and
the counties that have asked for mitigation--and I know that
farmers within my district that are Friant farmers have asked
for mitigation--why not all sit down, all work together, come
up with a plan for mitigation to bring the water back?
I mean, I think there is a lot of ideas out there that
could do that. We need to put it into law, though, so that
everybody has some assurances that this is going to happen.
Mr. Candee. My understanding is that the Interior
Department already plans--in fact, I think that was the subject
of the MOU that Congressman Cardoza mentioned, that there is
going to be public input and participation on all parts of the
settlement, including the development of the water management
plan.
For example, the farmers in San Joaquin County have a lot
of views about the water management plan and the idea of
recirculation. And so you are right, there is a lot of people
who want to be involved in reviewing those different options.
Mr. Nunes. Is my time up, Mrs. Napolitano?
Mrs. Napolitano. You have a minute.
Mr. Nunes. Mr. Peltier, do you have a comment?
Mr. Peltier. Yes. I would just add that Hal did mention the
role that the Secretary will play in further developing the
ideas, the water management plans. And it is critical, the
success of that planning effort and the implementation work
will be a function of, if everybody is at the table. Everybody
brings something different, a different interest. And unless we
are looking at all of them, our success will be limited.
So it is not just the Friant farmers in the service area;
there are folks outside the service area that can contribute.
There is going to be a huge organized effort that has already
begun, inter-agency, and not only among the agencies, but also
with the various water management folks. Congressman Costa has
a regional water management effort that he is spearheading.
There is some integration of these efforts that will occur. And
I think everybody shares the concern about the uncertainty of
our future water supplies.
My quick comment would be that if we were talking the loss
of about 15 percent of the Friant water 20 years ago or more,
it would be pretty close to a one-to-one loss in terms of water
available for use. Today, I think we have learned a tremendous
amount about improved water management, and we will have a
great opportunity and great success in mitigating that adverse
impact.
Thank you.
Mr. Nunes. But Mr. Peltier, what do I do, though----
Mrs. Napolitano. I am sorry, Mr. Nunes, we have a vote that
we have only a few minutes, and I think we need to wrap the
panel up. I think, Mr. Dooley, if you have a quick comment, and
then let us move on.
Mr. Nunes. So you are going to dismiss this panel?
Mrs. Napolitano. I dismiss it until they come back. You can
put your questions in writing, sir. Yes, sir.
Mr. Dooley. I would just mention that a number of the
proposals that are identified in the report that we submitted
for the record are what we call integrated regional water
management plans. And it should be noted that Proposition 84,
in addition to $100 million for the San Joaquin River
Settlement, has $117 million that is available for
implementation of integrated regional water management plans.
And we expect a number of those projects that are identified
will be funded through Proposition 84 funds.
Mrs. Napolitano. OK. Well, thank you very much for all of
you. Any further questions can be submitted for the record, and
we will forward them to you.
I would like to ask the witnesses, we have a vote on. I
believe we have a couple votes. If the witnesses would remain
until the hearing is adjourned, because there may be some other
questions that may be falling on your lap.
We will proceed with the second panel. My colleague tells
me she may not be back because she has another engagement, so
we will work on it when we get back.
So thank you very much. We will right now adjourn, just
temporarily.
[Recess.]
Mrs. Napolitano. This meeting will reconvene. And I will
turn over the introduction of Panel II to my Acting Ranking
Member, George Radanovich.
Mr. Radanovich. Thank you very much, Grace. Well, I am
almost back; I have one more chair to move over.
[Laughter.]
Mr. Radanovich. Thank you very much, Grace. I would like to
introduce Panel II. Tom Birmingham, the General Manager of the
Westlands Water District in Fresno, California; Cannon Michael,
landowner in the San Joaquin River Exchange Contractors Water
Authority in Los Banos, California; Ken Robbins, Attorney for
the Merced Irrigation District; and Allen Ishida, Supervisor
for Tulare County Government in Visalia, California.
Welcome to the Subcommittee. Thank you for being here, and
I look forward to your testimony.
Mrs. Napolitano. And may I add to Mr. Radanovich, if he is
not going to learn to pronounce the Mexican names better than
that, I will rethink----
Mr. Radanovich. I cannot roll my R's, Grace. I am working
on it.
[Laughter.]
Mrs. Napolitano. You are on, sir.
STATEMENT OF THOMAS W. BIRMINGHAM, GENERAL MANAGER/GENERAL
COUNSEL, WESTLANDS WATER DISTRICT, FRESNO, CALIFORNIA
Mr. Birmingham. Thank you, Madame Chairman and Mr.
Radanovich, other Members of the Subcommittee. I appreciate the
opportunity to appear here today to testify in support of H.R.
24.
From the perspective of Westlands Water District and the
San Luis and Delta-Mendota Water Authority, this settlement
represents a fair balance between the needs of the natural
resources of the San Joaquin River and the preservation of a
water supply that is critical to the economy of the San Joaquin
Valley, and indeed the State of California.
Farmers on the west side of the San Joaquin Valley have had
first-hand experience dealing with chronic water-supply
shortages that resulted from involuntary reallocations of water
from irrigation uses to fish and wildlife uses. And we
certainly understand and support the efforts of the Friant
water users to minimize water supply impacts that could result
from an adverse judicial decision.
At the outset of this process, we had a number of concerns
about the potential impact that implementation of the
settlement agreement could have on the area served by the San
Luis and Delta-Mendota Water Authority, as well as Westlands
Water District, and those concerns were outlined in testimony
that I submitted to the Subcommittee last September. I can't
express enough the appreciation that we have for the efforts of
Members of this body, as well as Senator Feinstein, and the
willingness of the settling parties to sit down and discuss
with us amendments to the original proposed legislation, to
address the concerns that the third parties involved in the
discussions had.
And I think that it is fair to say, as outlined in my
written testimony, that we are very confident that the
legislation in its present form expresses an unambiguous
Congressional intent that the implementation of this settlement
will not or shall not have adverse impacts on third-party water
agencies.
This settlement represents what I would characterize as
another milestone in efforts to resolve resource issues through
a consensus process, as opposed to through litigation. And
again, I want to express our wholehearted support for the
legislation, and express our appreciation to Members of the
Subcommittee and to the settling parties.
Thank you.
[The prepared statement of Mr. Birmingham follows:]
Statement of Thomas Birmingham, General Manager/General Counsel,
Westlands Water District
Madam Chairman and members of the Subcommittee, my name is Thomas
Birmingham, and I am the General Manager/General Counsel of the
Westlands Water District (``Westlands''). I also serve as a Director of
the San Luis & Delta-Mendota Water Authority (``Authority''). I
appreciate the opportunity to testify today in support of H.R.24, ``The
San Joaquin River Restoration Settlement Act.''
At the outset, I would like to express our appreciation to Members
of Congress and the parties to Natural Resources Defense Council v.
Rodgers, the litigation that would be settled through enactment of the
San Joaquin River Restoration Act, for their efforts to ensure that
third parties will not be adversely affected by implementation of the
Settlement Agreement or the San Joaquin River Restoration Act.
Resolution of this longstanding litigation would be historic, and the
settlement would bring water supply certainty to a portion of the San
Joaquin Valley that is of critical importance to the agricultural
economy of the State of California. In our view, however, it is
critical that the settlement be implemented in a manner that does not
shift to other agencies unwarranted burdens associated with the San
Joaquin River restoration program. H.R.24 was drafted carefully to
avoid creating uncertainty and risk for other portions of the Valley,
and Westlands and the Authority support its enactment.
South-of Delta Contractors' Experience with Water Shortages
Westlands is a public agency of the State of California, which
serves irrigation water to portions of the westside of the San Joaquin
Valley in Fresno and Kings counties. Westlands is comprised of more
than 605,000 acres, and the demand for irrigation water is 1.4 million
acre-feet per year. Historically, that demand has been satisfied
through the use of groundwater, water made available to the District
from the Central Valley Project (``Project'') under contracts with the
United States for the delivery of more than 1.15 million acre-feet, and
annual transfers of water from other agencies.
The Authority was formed in 1992 and consists of 32 member public
agencies, including Westlands, each of which contracts with the United
States Department of the Interior, Bureau of Reclamation
(``Reclamation''), for supply of Project water. The Authority's member
agencies are entitled to approximately 2.5 million acre-feet of water
for agricultural lands within the western San Joaquin Valley, San
Benito County, and Santa Clara County, California. Authority members
also supply water for municipal and industrial uses, including the
delivery of approximately 150,000 acre-feet of water to the Santa Clara
Valley Water District, which serves the Silicon Valley. In addition,
Authority members provide approximately 200,000 acre-feet of water for
waterfowl and wildlife habitat in the San Joaquin Valley. In addition,
the Authority operates and maintains certain Project facilities under
contract with Reclamation. Two such facilities are the C.W. Jones
Pumping Plant (``Jones Pumping Plant''), located in the southern
portion of the Delta, near the city of Tracy, and the Delta-Mendota
Canal, which is used to deliver water from the Jones Pumping Plant to
the Authority's member agencies.
The area served by Westlands and other Authority member agencies is
one of the most fertile, productive and diversified farming regions in
the nation. Rich soils, a good climate, and innovative farm management
have helped make this area incredibly productive. Farmers in the area
served by Authority member agencies produce over 60 different high-
value, commercial crops that are sold both domestically and
internationally in the fresh, canned, frozen and dry food markets.
However, like every other region of the arid west, the ability of these
farmers to produce these crops and generate the associated economic
activity depends on the availability of an adequate, reliable source of
water.
Our experience with the implementation of the Central Valley
Project Improvement Act (CVPIA), Pub. Law 102-575, is illustrative of
what can happen to an agricultural region like the area served by the
Friant Division of the Project when significant quantities of water are
involuntarily reallocated from irrigation use to fish and wildlife use.
Project water deliveries to south-of-Delta contractors began in 1952,
and up until 1991, those deliveries were highly reliable and adequate
to meet the demand for irrigation water. Indeed, from 1952 to 1991,
Project water was the principal source of water for irrigation within
Delta Division, and the only reduction in Project water supplies
resulted from the extraordinary drought conditions in 1977, the driest
year on record in California. However, enactment of CVPIA made Project
water supply both unreliable and inadequate. The CVPIA was implemented
by the Department of the Interior in a manner dedicated more than
1,200,000 acre-feet of Project water for the restoration and
enhancement of fish and wildlife. Much of this water was taken away
from farms, ranches and business that had relied on it for decades.
Contrary to the assumption at the time of CVPIA's enactment, that it
would reduce water supplies by approximately 10% Project wide,
virtually all of the water supply reductions resulting from
implementation of CVPIA were imposed on south-of-Delta Project
agricultural water service contractors. The reliability of water
supplies for south-of-Delta water service contractors went from
approximately 92% in 1991 to approximately 50% in 2000, when the CalFED
Record of Decision was adopted.
In response to chronic water supply shortages caused by CVPIA,
farmers have had to rely more on the use of groundwater as a source of
irrigation water. As an example, in 2004, farmers in Westlands pumped
more than 210,000 acre-feet of groundwater, which is significantly more
than the USGS's estimate of the safe yield of the groundwater basin
(135,000 acre-feet). The extent to which farmers are compelled to rely
on groundwater is contrary to sound principals of conjunctive use,
which dictate that in wet or above normal years of precipitation,
groundwater use should be reduced to allow the groundwater table to
recover. In addition, Westlands has acquired and fallowed more than
89,000 acres of land to help balance the demand for water with the
District's available supply. Westlands has also acquired all of the
lands in Broadview Water District and the water service contracts of
Widren Water District, Centinella Water District, Mercy Springs Water
District, and Ora Loma Water District. Lands in these other districts
that were previously irrigated with Project water have been retired
from irrigated agricultural production. In the San Joaquin Valley land
fallowing results in third party impacts, which disproportionately
affect the poor and minorities.
It is easy for westside farmers, who have suffered the turmoil and
increased costs resulting from unreliable, inadequate water supplies,
to understand the Friant water users' keen interest in resolving a
conflict that has the potential of taking more than a-half-a-million
acre-feet from farmers for fishery restoration. Although we have not
prepared a detailed analysis of potential impacts, it is safe to
conclude that a judicial decision adverse to the Friant water users
would devastate the agricultural economy of the eastside of the San
Joaquin Valley. For this reason, Westlands and the Authority support
the Friant water users' efforts to minimize through the Settlement
Agreement potential water supply losses resulting from a San Joaquin
River restoration program.
Need to Avoid Third-Party Impacts
The Settlement Agreement among the NRDC, other environmental
plaintiffs, the United States, and the Friant water users states that
the parties neither intend nor believe that implementation of the
Settlement Agreement will have a material adverse effect on any third
parties. Given the nature of the claims that the settling parties seek
to resolve through the Settlement Agreement any other intent would be
unreasonable. However, in their original form, the Settlement Agreement
and the proposed legislation attached thereto could be have been
interpreted or implemented in ways that would have significant adverse
effects on agencies that were neither parties to the litigation nor
involved in development of the restoration program. For instance,
without close coordination, the restoration program established by the
Settlement Agreement could frustrate efforts undertaken by other
agencies to restore or enhance the fall run Chinook salmon fishery on
tributaries of the San Joaquin River. In addition, if as contemplated
by the Settlement Agreement, spring run Chinook salmon are reintroduced
into the San Joaquin River, the take prohibition of the Endangered
Species Act could dramatically reduce the water supply or hydroelectric
generating capability of other agencies. To avoid such unintended
consequences, the proposed San Joaquin River Restoration Settlement Act
was amended prior to its introduction in the 110th Congress to express
an unambiguous congressional intent that third parties not suffer any
adverse effects.
I am confident that other witnesses will focus their testimony on
potential effects that could have been suffered by their agencies had
the San Joaquin River Restoration Settlement Act not been amended. My
testimony will focus on potential impacts on south-of-Delta long-term
contractors that currently receive water from the Delta Division of the
Project, including the San Luis Unit.
Use of Central Valley Project Water for Restoration of the Spring and
Fall Run
The Settlement Agreement establishes a ``Restoration Goal'' of
restoring and maintaining in good condition fish in the main stem of
the San Joaquin River below Friant Dam to the confluence of the Merced
River, including naturally-reproducing and self-sustaining salmon
fisheries. Flow criteria established by the Settlement Agreement limit
for a period of years the quantity of water that can be released from
Friant Dam for the restoration and maintenance of fish below the Dam,
but the Settlement Agreement contains no comparable limitation on the
use of other Project water or facilities to accomplish the Restoration
Goal. Although the Settlement Agreement provides that the Secretary of
the Interior shall comply with Endangered Species Act in connection
with his operation of the Friant Division of the Project, the
Settlement Agreement limits the quantity of water that can be
involuntarily taken from Friant Division long-term contractors to
achieve the ``Restoration Goal'' or to implement the San Joaquin River
restoration program. There is in the Settlement Agreement no comparable
protection for other Project long-term contractors.
For this reason it is conceivable that, absent clear direction from
Congress, the Secretary could be required to use water from Project
facilities outside of the Friant Division to accomplish the
``Restoration Goal'' established by the Settlement Agreement. As an
example, if it were determined that the flow provided by releases from
Friant Dam is insufficient to support out-migrating spring run salmon
and the insufficient flow would cause jeopardy for the species, the
Endangered Species Act and the San Joaquin River Restoration Settlement
Act, when read together, would obligate the Secretary to look to other
sources of Project water to provide additional flow. To avoid such a
circumstance Section 10 was added to H.R.24. Section 10 provides:
(a) FINDINGS.--Congress finds that the implementation of the
Settlement to resolve 18 years of contentious litigation regarding
restoration of the San Joaquin River and the reintroduction of the
California Central Valley Spring Run salmon is a unique and
unprecedented circumstance that requires clear expressions of
Congressional intent regarding how the provisions of the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) are utilized to achieve
the goals of restoration of the San Joaquin River and the successful
reintroduction of Central Valley Spring Run Chinook salmon.
(b) REINTRODUCTION IN THE SAN JOAQUIN RIVER.--California Central
Valley Spring Run Chinook salmon shall be reintroduced in the San
Joaquin River below Friant Dam pursuant to section 10(j) of the
Endangered Species Act of 1973 (16 U.S.C. 1539(j)) and the Settlement,
provided that the Secretary of Commerce finds that a permit for the
reintroduction of California Central Valley Spring Run Chinook salmon
may be issued pursuant to section 10(a)(1)(A) of the Endangered Species
Act of 1973 (16 U.S.C. 1539(a)(1)(A)).
(c) FINAL RULE.--
(1) Definition of third party.--For the purpose of this
subsection, the term ``third party'' means persons or entities
diverting or receiving water pursuant to applicable State and
Federal law and shall include Central Valley Project
contractors outside of the Friant Division of the Central
Valley Project and the State Water Project.
(2) Issuance.--The Secretary of Commerce shall issue a final
rule pursuant to section 4(d) of the Endangered Species Act of
1973 (16 U.S.C. 1533(d)) governing the incidental take of
reintroduced Central Valley Spring Run Chinook salmon prior to
the reintroduction.
(3) Required components.--The rule issued under paragraph (2)
shall provide that the reintroduction will not impose more than
de minimis water supply reductions, additional storage
releases, or bypass flows on unwilling third parties due to
such reintroduction.
In addition, Section 4 of the San Joaquin River Restoration
Settlement Act provides:
(f) EFFECT ON CONTRACT WATER ALLOCATIONS.--Except as
otherwise provided in this section, the implementation of the
Settlement and the reintroduction of California Central Valley
Spring -Run Chinook salmon pursuant to the Settlement and
section 10, shall not result in the involuntary reduction in
contract water allocations to Central Valley Project long-term
contractors, other than Friant Division long-term contractors
Westlands and the Authority understand these provisions of H.R.24
to provide clear congressional direction that the implementation of the
Settlement Agreement shall not adversely affect the water supply or
project operations of entities, including Project water service
contractors outside of the Friant Division, that were not party to the
litigation.
Recirculation or Recapture of Water
Provisions of both the Settlement Agreement and the San Joaquin
River Restoration Settlement Act direct the Secretary to develop and
implement a plan or program of recirculation, recapture, reuse,
exchange or transfer of water released for restoration flows, for the
purpose of reducing or avoiding impacts to water deliveries to the
Friant long-term contractors. It has been reported in the press that
Peter Vorster, Ph.D., a hydrologist for the environmental plaintiffs
has calculated that approximately 100,000 acre-feet of water released
from Friant Dam pursuant to the Settlement Agreement could be
recaptured in the Delta for export back to the Friant Division. If
these reports are accurate, Dr. Vorster's conclusion is unrealistic.
Presently, the capacity of the Jones Pumping Plant and the
permitted capacity of the Harvey O. Banks Pumping Plant (``Banks
Pumping Plant'') are fully dedicated to meeting contractual commitments
to agencies outside of the Friant Division. Indeed, because of existing
restrictions imposed at these pumping plants to protect or enhance
anadromous and pelagic fish, except in extremely wet hydrologic
conditions, neither the Secretary nor the California Department of
Water Resources can meet water supply commitments to their respective
contractors. If a program to recapture, recirculate, or reuse
restoration flows released from Friant Dam were to displace existing
uses of the Jones Pumping Plant or the Banks Pumping Plant, the water
supplies of other agencies would undoubtedly be reduced and significant
conflict would ensue.
In discussions with representatives of the Friant Division water
users they stated that it was not their intent to displace existing
uses of either the Jones Pumping Plant or the Banks Pumping Plant.
Instead, they expect to only use excess capacity at these facilities,
when such capacity is available. To avoid any future conflict
concerning this issue, Section 4 of the H.R.24 was amended to provide
that the Secretary shall:
(4) Implement the terms and conditions of paragraph 16 of the
Settlement related to recirculation, recapture, reuse,
exchange, or transfer of water released for Restoration Flows
or Interim Flows, for the purpose of accomplishing the Water
Management Goal of the Settlement, subject to--
(A) applicable provisions of California water law;
(B) the Secretary's use of Central Valley Project facilities
to make Project water (other than water released from Friant
Dam pursuant to the Settlement) and water acquired through
transfers available to existing south-of-Delta Central Valley
Project contractors; and
(C) the Secretary's performance of the Agreement of November
24, 1986, between the United States of America and the
Department of Water Resources of the State of California for
the coordinated operation of the Central Valley Project and the
State Water Project as authorized by Congress in section 2(d)
of the Act of August 26, 1937 (50 Stat. 850, 100 Stat. 3051),
including any agreement to resolve conflicts arising from said
Agreement.
Stated succinctly, Westlands and the Authority understand this
provision of H.R.24 to mean that the Secretary's duty to implement a
program to recapture, recirculate, or reuse water released from Friant
Dam pursuant to the Settlement Agreement shall be subordinate to the
Secretary's use of the Jones Pumping Plant to make Project water and
water acquired through transfers available to existing Project
contractors that receive water from the Delta Division of the Project.
Moreover, because the Agreement of November 24, 1986, Between the
United States of America and the Department of Water Resources of the
State of California for the coordinated operation of the Central Valley
Project and the State Water Project, authorized by Pub. Law 909-546,
provides, inter alia, for the coordinated operations of the Jones the
Banks Pumping Plant, the Secretary's duty to implement a recapture,
recirculation, or reuse program will be subordinate to his performance
of that agreement and any agreement to resolve conflicts arising from
the coordinated operations agreement.
Conclusion
Again, I want to express Westlands' and the Authority's support for
the Friant water users' effort to minimize the water supply losses that
could result from an adverse ruling in the judicial proceedings
concerning the Secretary's obligation to release water from Friant Dam
to restore and maintain in good condition fish that exist below the
Dam. In addition, I want to express Westlands' and the Authority's
appreciation of the settling parties' willingness to draft amendments
to H.R.24 to ensure that implementation of the Settlement Agreement
will not have a material adverse effect on any third parties. I would
welcome any questions from members of the Subcommittee.
______
[Response to questions submitted for the record by Thomas W.
Birmingham, General Manager/General Counsel, Westlands Water District,
follows:]
March 14, 2007
Emily Knight, Clerk
Subcommittee on Water and Power
1522 Longworth House Office Building
Washington, D.C. 20515
RE: Response to Questions
Dear Ms. Knight:
Thank you for the opportunity to testify regarding the H.R.24, the
San Joaquin River Restoration Settlement Act. As I indicated in my
testimony, Westlands Water District supports the enactment of H.R.24.
It is important legislation that will resolve a long-standing dispute
regarding the United States Bureau of Reclamation's obligation to
release water from Friant Dam to keep in good condition fish that exist
below the Dam and will help provide water supply certainty for an area
of California that is vital to the state's agricultural economy. Below
is my response to written questions posed by Representative Devin Nunes
after the hearing.
Question Submitted by Mr. Nunes:
During your oral testimony before the Subcommittee you testified
that the Bureau of Reclamation and San Luis Unit water service
contractors are not now ready to pursue legislation to authorize the
concepts for resolution of drainage issues in the San Luis Unit.
Realistically, how quickly could the parties to litigation regarding
drainage issues in the San Luis Unit be prepared to pursue authorizing
legislation for a settlement?
Answer:
On February 15, 2007, the United States Bureau of Reclamation
briefed Members of Congress and congressional staff on discussions
among Reclamation, San Luis Unit contractors, and other interested
agencies concerning alternatives means of addressing the drainage issue
in the San Luis Unit of the Central Valley Project. Among the
alternatives described by Reclamation were ``Concepts for Collaboration
Drainage Resolution,'' which describe a potential settlement of
litigation brought against Reclamation and the San Luis Unit
contractors by the San Joaquin River Exchange Contractors. A
substantial amount of work went into the development of those concepts,
but additional work is required to assure other entities, particularly
the California Department of Water Resources, that implementation of
the concepts will not negatively affect their water supply, project
operations, or costs. If the parties and other interested agencies work
diligently to address questions raised by the other interested
agencies, I believe the parties to the litigation could be prepared to
pursue authorizing legislation by the end of May, 2007.
Question Submitted by Mr. Nunes:
If all of the other parties involved in the negotiations concerning
the form of H.R. 24 were to agree, would your organization support an
amendment of H.R. 24 authorizing the construction of pumping and
conveyance facilities required to implement the recirculation,
recapture, and reuse elements of the Water Management Goal of the
Settlement?
Answer:
Except in very rare circumstances, there presently exists no excess
capacity at the C.W. ``Bill'' Jones Pumping Plant or the Harvey O. Bank
Pumping Plant for the implementation of the recirculation or recapture
elements of the Water Management Goal. This is especially true during
the periods of the year during which Restoration Flows will be
released. Therefore, if the Secretary is going to successfully
implement the recirculation and recapture elements of the Settlement
Agreement, it may be necessary to construct new pumping and conveyance
facilities. H.R.24 currently provides that implementation of the terms
of the Settlement related to recirculation, recapture, reuse, exchange,
or transfer of water released for Restoration Flows or Interim Flows
shall be subject to, inter alia, the Secretary's use of Central Valley
Project facilities to make Project water and water acquired through
transfers available to existing south-of-Delta Central Valley Project
contractors and the Secretary's performance of the Agreement of
November 24, 1986, between the United States of America and the
Department of Water Resources of the State of California for the
coordinated operation of the Central Valley Project and the State Water
Project as authorized by Congress in section 2(d) of the Act of August
26, 1937 (50 Stat. 850), 100 Stat. 3051), including any agreement to
resolve conflicts arising from said Agreement. So long as these
provisions of H.R.24 are maintained in the legislation and the other
parties involved in the negotiations concerning the form of H.R. 24
agree to the amendment, Westlands Water District would support an
amendment of H.R. 24 that authorizes the construction of pumping and
conveyance facilities required to implement the recirculation,
recapture, and reuse elements of the Water Management Goal. If any
party involved in those negotiations were to object to the amendment,
Westlands Water District could not support it because of its prior
commitment not to support an amendment unless all parties agree.
Again, thank you for the opportunity to testify on this important
legislation. If I may be of further assistance to the Subcommittee,
please contact me at your convenience.
Very truly yours,
Thomas W. Birmingham
General Manager/General Counsel
cc: The Honorable Grace F. Napolitano
The Honorable Devin Nunes
The Honorable George Radanovich
The Honorable Dennis Cardoza
The Honorable Jim Costa
______
Mr. Radanovich. Next is Cannon Michael. Cannon, you are
welcome to the Subcommittee. You are recognized for five
minutes.
STATEMENT OF CANNON MICHAEL, LANDOWNER IN SAN JOAQUIN RIVER
EXCHANGE CONTRACTORS WATER AUTHORITY, LOS BANOS, CALIFORNIA
Mr. Michael. Thank you. Chairwoman Napolitano and honorable
Members of this Subcommittee, good morning and thank you for
allowing me the opportunity to testify here before you today.
I would like to just quickly point out the San Joaquin
River Exchange Contractors Authority. Some of the land that we
farm is within that authority, but I am not here directly to
testify on behalf of the exchange contractors. Steve Chedester,
the Executive Director, is here today, and is happy to answer
any questions if they are specifically directed at the Water
Authority.
As I said, I am a landowner and a farmer. We have a family
farm near Los Banos, California. Some of the land that we farm
is adjacent to the Reach 4B that is now part of what is now
known as Reach 4B.
Having had some opportunity for input into this
legislation, I am here today for two purposes. First, to
testify in support of the legislation; and second, to share
some concerns if the legislation is not implemented in the way
that we foresee that it will be.
I am a sixth-generation Californian. My great-great-great-
grandfather came here from Germany in the 1800s, and we have
been farming ever since that time. And I have three young boys,
and would like to continue the tradition of farming. I don't
know whether they will do it, but I have other cousins and
other family. And we are just one of many families along the
San Joaquin. As the San Joaquin stretches for miles below the
Friant Dam, it goes through many different reaches, and each of
those reaches will experience different challenges that will
come from this restoration. And many other landowners, many
communities will be affected, I feel, by this restoration
effort.
We don't know necessarily how those, what the impacts will
be at this point. I believe firmly that this legislation was
crafted in a way, with the collaborative effort of all these
different parties, and third-party input was requested and was
given. And I think that it is that type of unified effort that
is going to help move this forward, and is going to make, if
there is any chance for success, it is going to have to be
through collaborative effort here.
I would like to say that as one of these third parties,
there is a lot more to being a third party than just that name.
We are a group of landowners. We are families, we are teachers,
parents, communities. We are providers of food and fiber for
all of this great nation. We are not just third parties. There
is a real group of people out there who have been here for
either a long time or a short time, it doesn't matter; but
there is a chance that we all could face some real impacts from
this situation.
Reach 4B is obviously a place that is very close to me; it
is a place that I work in and live in, and every day I travel
across it. I know the challenges there. I see studies where
there are estimates of about $400 million to restore it. At
this point it is not capable of carrying anywhere near the
flows that are called for by the restoration, and I see it as
one of the major, major challenges. And there are other
challenges up and down the entire river, that it is not going
to be an easy--there is no easy way to restore the river.
But I do believe that it can be done, as I said, through a
collaborative effort. And I feel that it is imperative that the
third parties do have a voice in this settlement process. And I
think that we have had input into the legislation, as I have
said.
We do have fears of a project such as the San Luis Drain
that maybe didn't get completed, that this restoration needs to
move forward in the phased approach that is outlined in the
legislation. We need to make sure that the funding is there for
the project before it goes forward, and that it is taken--the
water is not reintroduced before we have these improvements in
place to ensure that the impacts are not too great on the
landowners there.
And that is mainly my testimony. I just hope that you will
all keep in mind that this is a major undertaking, and it is
going to be a long process for all of us involved. And just
please don't forget there are many of us who are living along
this river, and we need your support in order to make sure that
we are not adversely affected by this restoration effort.
[The prepared statement of Mr. Michael follows:]
Statement of Cannon Michael, Bowles Farming Company, Inc.
Chairwoman Napolitano and honorable members of this Sub-Committee,
good morning and thank you for allowing me the opportunity to testify
before you.
My name is Cannon Michael and I assist my uncle in operating our
family farm, Bowles Farming Company, Inc., located near Los Banos,
California. A good portion of the land we farm is adjacent to the San
Joaquin River along the stretch now known as Reach 4b. Having had an
opportunity for input into this legislation, I am here today for two
purposes, first to testify in support of the legislation and second, to
share with you some concerns should the legislation not be implemented
in the way we hope it will.
I am a sixth generation Californian and my family has been involved
with agriculture since the mid 1800's. My great-great-great grandfather
came to America, like so many immigrants have, in search of the promise
of better life and freedom. He arrived in California as a young man
with little more than a dream of what could be.
The San Joaquin Valley was no land of dreams for those who settled
there in the 1800's. It has taken the united efforts of farmers,
communities, state and local agencies and the federal government to
make the valley the ``breadbasket of the world'' that it is today. The
key component in the transformation of the valley has been a reliable
supply of water. With the reliable water supply, and the protection
from flooding, the San Joaquin Valley has become the most diverse and
productive agricultural center in the world.
I come before you today to testify on behalf of the farmers and
citizens that will be affected by the proposed restoration of the San
Joaquin River. We are not just ``Third Parties'' to this Settlement; we
are families, community leaders, teachers, coaches, providers of food
and fiber for our great nation. The restoration of the San Joaquin
River has far reaching impacts for all the residents of the San Joaquin
Valley. It is imperative that the Third Parties have a voice in this
complicated, lengthy and costly process.
For those of us located in Reach 4b, having a voice in the
restoration process is of vital importance. The San Joaquin River holds
to a defined channel in its upper reaches, but historically it would
spread into many ``braided'' channels as it reached the flat valley
floor in our area. The flows called for in the Settlement are
exponentially greater than the existing capacity of Reach 4b and could
severely impact the families that live and farm along this stretch. The
bill you are considering, H.R. 24, calls for the restoration's impact
on Reach 4b to be studied carefully and completely prior to introducing
any high level flows.
I understand that restoration of Reach 4B will cost in the range of
$400 million. Cost-benefit is one measure that will have to be
considered when studying the feasibility of using this reach of the
river. It is important that you understand the challenge of moving fish
through this reach. First of all, a sizeable amount of privately held
land will have to be acquired in order to create a stream channel of
sufficient width and depth to convey flow of at least 4500 cfs. The
valley floor here is very flat and the water table is high, so highly
engineered levees will be needed to protect the adjacent lands from
surface and sub-surface flooding. The new stream channel will also need
to be constructed in a fish friendly manner. Even after that, this
stretch of river has little elevation change, the slow moving water
will be warm--approaching 80 degrees during the summer, no matter how
much is released from Friant Dam. Reach 4b will, at best, be a hostile
environment for fish.
The San Joaquin River stretches for miles below the Friant Dam and
every reach has its own unique characteristics. The proposed
Restoration presents challenges for every mile of the San Joaquin and
there are many landowners who will be affected. We all need a reliable
water supply and our lands need to be protected from flooding. We are
mindful of the experience of water agencies and farmers in our area
regarding the federal government's failure to complete the San Luis
drain. We do not want to see a repeat of a half-finished project in
this restoration program. If our water supplier agencies are adversely
affected, we will be too. Therefore, it is essential that adequate
funds be appropriated and that the third parties have a place at the
table to make sure this program is implemented in a manner that doesn't
cause us harm.
In conclusion, this bill was crafted out of a collaborative effort
by the parties to the litigation, state and federal agencies and the
third party interests. This is the same type of collaborative effort
that will be needed if the restoration of the San Joaquin River can
ever truly be a success. Any changes to this bill could potentially
subvert the positive results that it represents. I respectfully ask
that you do not entertain any changes to this legislation.
______
Response to questions submitted for the record by Cannon Michael,
Bowles Farming Company, Inc.
Thursday, March 15, 2007
Submitted by Mr. Nunes (CA) to all witnesses:
If all of the other parties involved in the negotiations
concerning the form of H.R. 24 were to agree, would your
organization support an amendment of H.R. 24 authorizing the
construction of pumping and conveyance facilities required to
implement the recirculation, recapture, and reuse elements of
the Water Management Goal of the Settlement?
Answer:
So long as the existing provisions contained in the January 4, 2007
version of H.R.24 are maintained in the legislation, the other parties
involved in the negotiations concerning the form of H.R. 24 agree to
the amendment and there are no adverse impacts to the funding to be
made available for the mitigation necessary for the measures already
identified in the legislation and settlement, I would support an
amendment of H.R. 24 that authorizes the construction of pumping and
conveyance facilities required to implement the recirculation,
recapture, and reuse elements of the Water Management Goal. In
addition, I have received the approval from the San Joaquin River
Exchange Contractors Water Authority and the San Joaquin River Resource
Management Coalition who, as you know, were active participants in
developing the Legislation to support the proposed amendments on the
same terms.
Respectfully,
Cannon Michael
Bowles Farming Company, Inc.
______
Mr. Radanovich. Mr. Michael, thank you for your testimony.
Next is Mr. Ken Robbins, who is the attorney for the Merced
Irrigation District. Ken, welcome to the Subcommittee.
STATEMENT OF KENNETH M. ROBBINS, ATTORNEY,
MERCED IRRIGATION DISTRICT
Mr. Robbins. Thank you, Mr. Radanovich. I am pleased to be
here. Madame Chairwoman, I appreciate your invitation to us to
speak to you again today.
A lot of things have actually occurred relative to the
third-party positions in this matter since we last spoke, not
the least of which obviously is the negotiation of mitigations
for the issues the third parties, at least downstream of
Friant, raised with respect to this issue.
By understanding that the reintroduction of salmon into the
upper San Joaquin River would be done pursuant to an
experimental population designation, and by using the tools
provided by the Endangered Species Act, particularly sections
10[j] and 4[d], we have assured that the downstream water users
and the reservoir flood control water supply operators will not
be damaged by the reintroduction and the reopening of this
river.
We also want to report that a very strong promise that was
made last fall, at the conclusion of our negotiations, whereby
a mechanism would be created for the continuing input from
third parties, the downstream third parties, to the process
would be concluded. And as you have already heard this morning,
that memorandum of understanding was negotiated, has been
signed, almost in record speed, for purposes of what we are
talking about today. And we are very pleased to support the
legislation, and that MOU.
We have also been in contact with one of the other parties
on the river that were not at the table, the Lower San Joaquin
River Levee District. Our discussion with those folks, I
believe we have come to the conclusion with them that this
legislation covers their issues as well; but nevertheless, they
are in need of a memorandum of understanding as well to ensure
that their maintenance activities on the levees can be smoothly
coordinated with the implementation of this legislation. And
the third parties to this have pledged themselves to assisting
the levee district with the negotiations of their own MOU in
this regard.
I would echo the sentiments from the Department of Water
Resources. Nancy Saracino put very succinctly that our support
for this is obviously a result of our ability to have the
issues relative to the introduction of these threatened species
into the river actually mitigated.
Our projects on the Merced, the Tuolumne, the Stanislaus
Rivers that will be coming up for relicensing before the
Federal Energy Regulatory Commission, this legislation will
hold in abeyance any actions relative to those relicensing for
spring-run salmon until at least 2025 or 2026, whenever the
agreement may be looked at again relative to the flows.
So it puts us on essentially the same footing with the
settling parties, in terms of the protection we can expect from
the implementing legislation.
So with the mitigation for the reintroduction of this
experimental species, and for the relicensing of facilities
that provide us with water supply assurances, while at the same
time allowing us to support the reintroduction of salmon and
the reopening of the river, we are very pleased today to
support the legislation.
Thank you very much.
[The prepared statement of Mr. Robbins follows:]
Statement of Kenneth M. Robbins, General Counsel,
Merced Irrigation District
Good morning, Chairwoman Napolitano and members of the
Subcommittee. My name is Ken Robbins. I am General Counsel for Merced
Irrigation District. I am pleased to have the opportunity to testify
today regarding H.R. 24, the San Joaquin River Restoration Settlement
Act, introduced by Mr. Radanovich and others, that would implement the
settlement agreement reached by the parties to the Friant litigation.
The Merced Irrigation District is part of the San Joaquin
Tributaries Association (SJTA), a group of five associated eastside
Irrigation Districts with water storage and hydroelectric facilities
located on the three principal tributaries to the San Joaquin River.
The SJTA, including the Merced Irrigation District, is supportive
of the goals of the settlement. The District is confident the
settlement can be implemented in a manner that ensures both the
restoration of the San Joaquin River and the mitigation of impacts from
such an undertaking on third parties. The District believes the
settling parties when they say they do not intend to impose impacts on
third parties.
As you may recall, I testified before this Subcommittee last fall.
Rather than repeat the background information that was contained in
that testimony, I respectfully request that my earlier testimony and
that of Mr. Allen Short, General Manager of the Modesto Irrigation
District, be incorporated as part of the record of this hearing. Our
testimony stressed that the third parties were supportive of the
settlement. At that time we offered suggestions and proposed
legislative language to ensure that the goal of the settlement is
achieved without imposing impacts on third parties. A lot has happened
since last September, and I am happy to report to you that we continue
to support the efforts of the settling parties and the legislation as
introduced.
The legislation before you is the product of months and months of
hard work by the parties to the litigation and by the third parties and
could not have been successfully negotiated without the efforts of
Senator Feinstein, Congressmen Radanovich, Cardoza, and Costa, and
their excellent staffs. We are grateful to them for their support of
this legislation that is so vital to the San Joaquin Valley.
The settlement package negotiated by the parties to the NRDC v.
Rodgers litigation included proposed legislation to implement the
settlement. While we felt that the legislation was a good start, it did
not, by itself, provide the kind of third party protections needed to
make good on the promise by the settling parties that the settlement
not impose substantial third party impacts.
Speaking for my client, the Merced Irrigation District, and the
SJTA, we feel that H.R. 24 as it now stands provides the protections we
need to support the settlement. This legislation is the product of
months of negotiations, culminating with a signed pledge by all the
parties to support the legislation. Any changes to the legislation,
therefore, could easily undo that fragile support.
I want to now focus my discussion on Section 10 of the Act. The
third parties offered language to amend the legislation proposed by the
settling parties. These amendments were made to protect the Eastside
districts, as well as the San Joaquin River Exchange Contractors, other
water users on the mainstem San Joaquin River, and the U.S. Bureau of
Reclamation and the California Department of Water Resources, from the
unintended consequences of introducing a federally-listed threatened
species of Chinook salmon into the San Joaquin River. Section 10 was
added to allow for the reintroduction of Central Valley Spring Run
Chinook Salmon without impacting the third parties and to permit the
restoration of the San Joaquin River to move forward in a cooperative
manner.
The first thing to note is that Section 10(a) makes a finding that
the settlement and the reintroduction of the Central Valley Spring Run
Chinook Salmon is a unique and unprecedented circumstance requiring
clear Congressional intent on the application of the Endangered Species
Act (ESA) to ensure that the goals of the settlement are accomplished.
Section 10(b) of the Act goes on to state that the reintroduction shall
be reintroduced pursuant to Section 10(j) of the ESA provided that the
Secretary of Commerce makes the requisite findings.
Section 10(j) of the ESA authorizes the Secretaries of Commerce or
the Interior to release ``experimental populations'' of threatened or
endangered species outside the current range of the species in order to
further the conservation of the species. 16 U.S.C. Sec. 1539(j). At the
present time, NMFS has not adopted any regulations concerning
experimental populations, although it is permitted to do so under the
ESA. The U.S. Fish and Wildlife Service (USFWS) has, however, adopted
regulations under Section 10(j).
``Experimental population'' means a designated population,
including subsequent off-spring, which can be introduced into an area
where it is ``wholly separate geographically from nonexperimental
populations of the same species.'' 16 U.S.C. Sec. 1539(j)(1); 50 C.F.R.
Sec. 17.80(a). When a population is designated ``experimental,'' it is
treated as if it were listed as a threatened species, rather than an
endangered one. 16 U.S.C. Sec. 1539(j)(2)(C); 50 C.F.R. Sec. 17.82. A
``nonessential experimental population'' means an experimental
population whose loss would not appreciably reduce the likelihood of
the species' survival in the wild. 50 C.F.R. sec. 17.80(b). If an
experimental population is deemed nonessential, no critical habitat
designation is made for the population. 16 U.S.C. Sec. 1539(j)(2)(C);
50 C.F.R. Sec. 17.81(f). In addition, for purposes of Section 7
consultations, nonessential experimental populations are treated as
species proposed to be listed under Section 4 of the ESA, rather than
threatened or endangered. 16 U.S.C. Sec. 1539(j)(2)(C)(i).
The SJTA believes that in order to protect third party interests
from unintended impacts of the settlement, it is both reasonable and
essential for the Secretary of Commerce to issue a final rule pursuant
to section 4(d) of the ESA that will govern the incidental take of the
Central Valley Spring Run Chinook Salmon prior to its reintroduction in
the San Joaquin River. Included in the final 4(d) rule should be a
provision to ensure that third parties not suffer water supply impacts
as an indirect effect of the San Joaquin River restoration and that
current lawful operations in the San Joaquin River watershed--including
tributary water supply and hydroelectric operations on which the SJTA
districts are critically dependent--would not be subject to ``take''
under the ESA. H.R. 24 contains a provision that provides that the
reintroduction of the Central Valley Spring Run Chinook Salmon not
impose more a than de minimis water supply reductions, additional
storage releases, or bypass flows on third parties. We support this
language as it is currently written.
With regard to the ``wholly separate'' criterion, the
reintroduction of Central Valley Spring Run Chinook Salmon to the San
Joaquin River should qualify as no other populations of Central Valley
Spring Run Chinook Salmon exist on the San Joaquin River or its
tributaries. Indeed, to reintroduce them individuals or eggs of Central
Valley Spring Run Chinook Salmon on the Sacramento River will have to
be transported to the San Joaquin River.
With respect to the required finding that the experimental
population's loss would not appreciably reduce the species' likelihood
of survival, it would be difficult to understand how the Secretary
could find that the population to be reintroduced is ``essential to the
continued existence of the species'' and still remove it from a much
more friendly habitat--particularly in light of its threatened status
rather than endangered. One would reasonably conclude that the fish
would not be taken from their original habitat for such an experiment
if they were in fact ``essential.''
This protects all San Joaquin River and tributary water operations
in three ways. First, if the experimental reintroduction of Central
Valley Spring Run Chinook Salmon cannot be sustained based upon the
actions of the settling parties, the Eastside Districts will not be
required to release additional water, change operations, or commit
resources to make up the shortfall. Second, if the experimental
reintroduction is successful, such success will demonstrate that the
current, lawful operations of the five Eastside districts have no
detrimental effect on the reintroduced Central Valley Spring Run
Chinook Salmon. Third, the designation of the reintroduced Central
Valley Spring Run Chinook Salmon as a nonessential experimental
population protects the water users while the experiment is in effect
and allows an opportunity for the third parties, the State of
California, the settling parties and the federal government to develop
a longer term Habitat Conservation Plan.
H.R. 24 also protects the Merced, Turlock and Modesto Irrigation
Districts from having to mitigate impacts to the experimental
population of Central Valley Spring Run Chinook Salmon prior to 2026
when their hydroelectric projects are relicensed by Federal Energy
Regulatory Commission (FERC) in 2014 and 2016. The Merced Irrigation
District and the other eastside districts need the same level of
protection as is afforded to the U.S. Bureau of Reclamation under the
terms of the settlement. Under the settlement there is no re-opener for
twenty years, until 2026, for the release of additional water from
Friant Dam. The Third Parties want this same protection given to them
for their FERC relicensing. Merced Irrigation District's current FERC
license expires in 2014, while Modesto Irrigation District and Turlock
Irrigation District will seek to relicense their Don Pedro Project in
2016. The National Marine Fisheries Service has mandatory conditioning
authority under section 18 of the Federal Power Act and section 7 of
the ESA to condition these licenses with terms and conditions related
to the reintroduced, experimental population of Central Valley Spring
Run Chinook Salmon. The Districts are agreeable to have a reopener
clause in their new FERC licenses to specifically address the
population's status at that time, but not earlier.
In recognition of this unique circumstance, H.R. 24 provides that
the final 4(d) rule specify that the Secretary of Commerce exercise its
authority under Section 18 of the Federal Power Act by reserving its
right to file prescriptions until after the settlement terminates or
December 31, 2025. This protects the district from potential
unreasonable mandatory conditions placed in their licenses to protect a
reintroduced, experimental population. We think the time to address
this issue is after termination of the settlement.
Following the agreement on the legislation which is now H.R. 24,
the Stipulation of Settlement was approved by Judge Karlton on October
23, 2006. The SJTA filed an amicus curiae brief in that proceeding
supporting the proposed settlement and also identifying for the judge
the potential third party impacts from the settlement as proposed. I,
and others, expressed these same concerns to you and the members of the
Subcommittee at the previously held hearing on September 21, 2006.
Those concerns have been largely alleviated by H.R. 24.
The third parties, including the SJTA, plan to be active
participants in the restoration efforts on the San Joaquin River. The
final major activity involving the third parties was the development of
a Memorandum of Understanding (MOU) with the United States Bureau of
Reclamation. The settlement and the draft legislation did not provide a
direct vehicle for third party participation. To that end we have
approved a MOU that will allow the third parties to provide meaningful
input into the restoration activities and to coordinate our ongoing
operations on the tributaries and mainstem with those of the
Restoration Administrator and the other restoration participants.
The MOU is necessary because the five eastside irrigation districts
of the SJTA have expended substantial amounts of water and money to
restore the Fall Run Chinook Salmon fishery on the Merced, Tuolumne and
Stanislaus Rivers. These efforts include active participation in, and
funding for the San Joaquin River Agreement, the Vernalis Adaptive
Management Plan (VAMP), Federal Energy Regulatory Commission (FERC)
proceedings, on-going district funded studies and monitoring and
restoration activities, and the Merced River Fish Hatchery. These
efforts were covered in my September 21, 2006, testimony.
This concludes my testimony. Madam Chairwoman, thank you for the
invitation to testify before this Subcommittee today. I will be happy
to answer any questions members of the Subcommittee may have.
______
[Response to questions submitted for the record by Kenneth
M. Robbins, General Counsel, Merced Irrigation District,
follows:]
MASON, ROBBINS, BROWNING & GODWIN
Attorneys at Law
700 Loughborough Dr., Suite D
Merced, CA 95348
(209) 383-9334
Mailing Address
P.O. Box 2067
Merced, CA 95344-0067
FAX: (209) 383-9386
E-MAIL: mrgb@mrgb.org
March 15, 2007
Ms. Emily Knight, Clerk
Subcommittee on Water and Power
1522 Longworth House Office Building
Washington, D.C. 20515
RE: Response to Questions
Dear Ms. Knight:
Thank you for the opportunity to testify regarding the H.R.24, the
San Joaquin River Restoration Settlement Act. As I indicated in my
testimony the Merced Irrigation District and the San Joaquin Tributary
Association supports the enactment of H.R. 24. This legislation is
critical to resolving long standing litigation regarding the operation
of the Friant Division of the Central Valley project. This legislation
will also resolve questions of certainty regarding water supply in the
region.
Below is my response to the question posed by Representative Devin
Nunes.
Question: If all of the other parties involved in the negotiations
concerning the form H.R. 24 were to agree, would your organization
support an amendment of H.R. 24 authorizing the construction of pumping
and conveyance facilities required to implement the recirculation,
recapture, and reuse elements of the Water Management Goals of the
Settlement?
Answer: Answering on behalf of myself appearing as a witness for
the Merced Irrigation District and for the San Joaquin Tributary
Association and on behalf of Mr. Cannon Michael, who appeared as a
witness on behalf of The San Joaquin River Resource Management
Coalition, a group of landowners potentially impacted by river
restoration efforts, and assuming the premise of the question is true,
that is to say, that all other parties concur, our agencies and
landowners would agree to such an amendment as well. Reviewing the
circumstances upon which such facilities would be constructed and
operated is of course critically important to ensure that the spirit of
the legislation continues by providing assurance that such new
facilities would not impact the water rights or supplies of others is
critical. We would therefore suggest that extensive studies be included
within the context of any construction authorization prior to
implementation.
Thank you again for the opportunity to testify.
Very truly yours,
MASON, ROBBINS, BROWNING & GODWIN
KENNETH M. ROBBINS
cc: The Honorable Devin Nunes
The Honorable George Radanovich
The Honorable Dennis Cardoza
The Honorable Jim Costa
______
Mr. Radanovich. Thank you, Mr. Robbins, for your testimony.
We appreciate that.
And we would like to welcome Mr. Allen Ishida, Supervisor
from Tulare County. Mr. Ishida, welcome to the Subcommittee.
You may begin.
STATEMENT OF ALLEN R. ISHIDA, SUPERVISOR,
TULARE COUNTY GOVERNMENT, VISALIA, CALIFORNIA
Mr. Ishida. Well, thank you, and thank you for the
opportunity to be here.
I am a third-generation citrus farmer who takes my water
from the Friant. I am also the Chair of the Board of
Supervisors.
We appreciate this opportunity to appear before you to
provide my perspective on the San Joaquin River Settlement.
Madame Chair, I request that I may place the following
documents into the record: resolutions supporting mitigation
with a loss of surface water from Tulare County, from Kern
County, and all eight of our incorporated cities. Letters
supporting mitigation from the Community Water Center, the
Plainview Mutual Water Company, and Self-Help Enterprises. An
article from February 11 from the Fresno Bee detailing the
water quality issues we have on the east side, and studies from
the Northwest Economic Associates and the University of
California about the impact of the settlement on our economy.
Let me begin by stating that we do not oppose the efforts
of the settling parties to resolve the San Joaquin River
dispute. We believe that the restoration of this river is a
noble goal.
When the Friant Dam was put in, the main reason for
building this dam was to secure additional water supplies to
address the water depletion that happened during the 1920s and
1930s in the Central Valley. After the dam, our water supplies
were met, and we actually increased our water table. So it was
a very plus-plus benefit for the Central Valley.
Today I am here to give my perspective as an elected
official. It is a little different than what we have heard
earlier, because most of the third parties represented here
today are directly involved either as irrigation districts, or
the state government, or the Federal government. I am here to
represent the third parties, the 400,000 residents we have in
Tulare County who are not direct users of this water.
We are impacted by any loss of additional surface water. As
we reduce, as farmers, the need to pump more water from the
underground, it creates an overdraft situation which diminishes
the underground water quality.
To give you a little demographic of Tulare County, over 50
percent of our population is Latino. In a 2000 census, over one
third of our population was between the age of zero and 19. We
are a very young county, and our projected population growth of
over 50 percent in the next 20 years mainly will come from
within existing families that we have.
The future of Tulare County will depend upon the quality
and quantity of water that is available to our residents.
Providing water quality is currently a major challenge.
For example, the City of Lindsay received 60 percent of its
water from the Friant Kern Canal, and to supplement that water,
their closest water well is three miles outside the city
limits. My hometown community of Strathmore is 100 percent
dependent upon Friant water. Several of our unincorporated
communities' water supplies do not meet California State water
quality standards. We are currently looking for new wells.
The result of the proposed water release from this
settlement will have a significant native impact on our
communities. The resulting overdraft of our underground water
table will further decrease our water quality.
In closing, I must emphasize all changes to surface water
deliveries from Friant Dam, absent a mitigation, will undermine
the very foundations of the economic success and prosperity in
the Central Valley. A promise to mitigate the loss of surface
water for the settlement is not adequate for my constituents.
We are asking for concrete mitigation language and the
implementation of legislation.
Thank you for this opportunity to express our concerns.
[The prepared statement of Mr. Ishida follows:]
Statement of Allen Ishida, Board Chairman,
Board of Supervisors, County of Tulare
My name is Allen Ishida, a third generation citrus grower in the
Lindsay -Strathmore area and the Chairman of the Tulare County Board of
Supervisors. I have spent over 20 years in the commercial real estate
business selling farm and subdivision properties in California before
returning to our family farm. I appreciate the opportunity to appear
before you to provide my perspective of the San Joaquin River
Settlement.
Let me begin by saying that this settlement threatens to turn back
the clock on an economic and environmental decision that was
deliberately made by your predecessors to address regional water
reliability. Therefore, the legislation being debated today represents
a significant departure from the seventy years of public policy that
created the most productive agricultural region in the world. Let me
also say that I do not oppose the efforts of the settling parties to
resolve the San Joaquin River dispute. I believe the restoration of the
river is a noble goal.
The original lands my family began farming were once dry land
barley fields. My father, uncles and grandfather developed this land
into citrus because of the availability of the new surface water from
the Friant Dam and the micro climate that is ideal for citrus. The
citrus industry in Tulare County is now a 500 million dollar business.
Our original properties are still solely reliant on the surface water
provided by Friant because the underground water is not available in
sufficient quantities. My family and I felt confident in the federal
government's implied promise to continue supplying water. We therefore
have invested our future in farming. During the 1970's and 80's, with
my father and brother, we purchased additional lands that had available
underground water. Whatever shortfall in water delivery from the San
Joaquin River Settlement, we will hopefully be able to make up the
difference by pumping from the underground aquifer. Administration
Building 2800 W. Burrel, Visalia, CA 93291 (559) 733-6271 FAX: (559)
733-6898
The previous statement is from my perspective as a farmer. My
perspective as an elected official in one of the fastest growing
regions in California and my experience in the commercial real estate
profession is very different. I am very aware of the negative impact of
pumping water from the under ground aquifer will have on the future
development and quality of life in my county and neighboring counties.
This settlement has a far greater impact on more than 400,000 Tulare
County residents who were not direct participants to this settlement.
Tulare County's population is projected to increase to over 600,000 in
the next 20 years. The future of our county will depend on the quality
and quantity of water available to our residents.
One of the main reasons for building the Friant Dam was to secure
an additional water supply to address ground water depletion due to
pumping water for agricultural and domestic uses, which resulted in the
1920' and 1930's. The new surface water provided by Friant reduced the
depletion of our underground water. However, this situation is not
static, and the demand for water to meet the growing demands of urban,
agricultural and environmental uses in the San Joaquin Valley now means
that the Valley currently experiences a water supply deficit of 1.1
million acre-feet in an average year, and 2.6 million acre feet in a
drought year. This deficit will grow if the Settlement is adopted as
proposed with out any mitigation plan for water supply losses. These
numbers show that we need additional surface water, not less.
In fact, I call your attention to two studies from the Northwest
Economic Associates and the University of California that came to the
conclusion that ground water levels would nearly double in depth and
pumping costs would significantly increase as a result of the water
releases required in the Settlement. According to the studies, there
would be serious economic impacts to the region due to the loss of jobs
and the reduction of agricultural production.
``MADAME CHAIRWOMAN, I REQUEST THAT THESE TWO STUDIES BE PLACED IN
THE HEARING RECORD''
Providing water in the quantity and quality to our communities is
one of the major challenges we are currently facing in Tulare County.
We have significant water quality issues with saline and nitrate levels
above California State water quality standards. For example, the City
of Lindsay (population 11,000), which receives approximately 60% of its
water from Friant, had to locate its supplement water well 3 miles
outside of the city limits because of water quality. We currently are
looking for new well sites for several of our unincorporated
communities whose water quality does not meet state standards. The
result of these proposed water releases from the Settlement will have a
significant negative environmental impact on our communities. The
potential increase overdraft of our underground water table will
further decrease our water quality.
``MADAME CHAIRWOMAN, I REQUEST THAT I MAY ADD 8 TULARE COUNTY CITY
RESOLUTIONS, TULARE AND KERN COUNTY BOARD OF SUPERVISORS RESOLUTIONS, 1
NEWSPAPER ARTICLE AND 3 LETTERS FROM CONCERNED CITIZEN GROUPS TO BE
PLACED IN THE RECORD.''
In closing, I must emphasize that any changes to water deliveries
from the Friant Dam, absent mitigation, will undermine the very
foundation of economic success and prosperity in the Central Valley. A
promise to mitigate the loss of surface water from the San Joaquin
River Settlement is not adequate for my constituents. We are asking for
concrete mitigation language in the implementation legislation.
Thank you for this opportunity to express our concerns.
______
[NOTE: Additional information submitted for the record by Mr.
Ishida has been retained in the Committee's official files.]
Response to questions submitted for the record by
Allen Ishida, Supervisor, County of Tulare
Questions from Congressman Radanovich:
1. ``In your testimony to the Water & Power Subcommittee on the
House Resources Committee on March 1, 2007, you asked that two studies
be introduced into the Record. The first such study was prepared by
Northwest Economics Associates and the second by the University of
California. Your testimony stated that the studies concluded that
ground water levels would nearly double in depth and pumping costs
would significantly increase as a result of water releases required by
the Settlement. Please answer the following:''
A. ``What was the date each of the studies was prepared?''
I submitted two studies for the record. The first study by the
University of California titled ``Impacts of Water Reallocations on The
Eastern San Joaquin Valley'' was published on December 31, 1996. The
second study, commissioned by Friant Water Users Authority, by the
Northwest Economic Associates titled ``Analysis of the Impacts of
Surface Water Reductions on the Eastern San Joaquin Valley of
California'' was published on August 26, 1997.
B. ``Were the water releases contemplated by the studies you
introduced into the record the same as those required by the Settlement
that is the subject of H.R. 24? If not, what assumptions regarding
water releases did the study assume?''
Yes, the parties to the Settlement have stated that ``170,000 acre
feet, plus 10% buffer flows,'' will be released to restore the river.
In the past, Friant has stated that sixty percent of the time they
operate in a Dry and Normal-Dry year. If you take the average releases
between these two years identified in the Settlement, plus the buffer
flows, expected releases will reach 237,600 acre feet (see below). Both
the University of California and Northwest Economics Associates (NEA)
studies analyzed the impacts of releasing 200,000 and 500,000 acre
feet. While the studies were conducted ten years ago, the analysis was
based on releases contemplated in the Settlement (see below).
On the issue of groundwater, I would like to quote from the NEA
study:
... groundwater would be used to replace a significant portion
of the reduced CVP supplies. Over time, though, the increased
groundwater pumping would draw down an already over drafted
groundwater basin--The higher costs of pumping from
increasingly greater depths would cause more land to be removed
from production. Ultimately, water quality problems associated
with lower water tables and generally depleted aquifers would
result in the idling of even more acreage ``''
Since 1996, the population in the San Joaquin Valley has grown and
the reliance on surface water has increased. Therefore, it is
reasonable to assume that if the studies were repeated in 2007, the
economic impacts would simply increase.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
C. ``Are you aware if any subsequent studies have been prepared
based upon dated information? If so, when?''
I am unaware of any subsequent studies on the impacts of water
reductions to the San Joaquin Valley. However, numerous studies were
conducted in the early 1990s on the impacts of the 1986-1992 drought--
four of them were completed by RAND, the California Institute for Rural
Studies, Inc., and the Northwest Economic Associates. These studies
outlined the impacts to groundwater and the economic toll it took on
San Joaquin Valley community. I believe they are relevant because the
Settlement would be a self imposed partial drought.
I have been informed that Congressman Nunes has asked Congressional
Research Service (CRS) to conduct a complete review of the Settlement
and its impacts on the San Joaquin Valley. Considering a feasibility
study will not be completed on the Settlement, I am hoping that the CRS
report will shed some light on the impacts to our community.
D. ``If you are aware of more recent studies, can you explain what
different assumptions were utilized by the more recent studies?''
See previous answer.
E. ``If you are aware of more recent studies, can you explain what
different conclusions were reached by the more recent studies?''
See previous answer.
2. ``Has the County of Tulare prepared any independent analysis of
the effects of the water releases required by the Settlement on the
groundwater conditions within the County? If so, what did the studies
conclude?''
The County has not prepared an independent analysis of the water
releases proposed in the Settlement. The County was not part of the
negotiations nor were they invited to participate in third party
negotiations in Washington D.C. Therefore, the County was unaware of
the releases called for in the Settlement until September 13, 2006.
Considering the Settlement proposed the expenditure of millions of
taxpayer dollars, the County believed that an independent feasibility
study would be completed and more current data would be gathered on the
impacts to cities and counties in the Friant service area. The County
has since been made aware that a feasibility study will not be
completed and the onus of doing such an independent study would be left
to those impacted. The County already struggles to meet existing
fiduciary responsibilities and cannot afford the outlays required to do
an independent study. However, if we were to receive federal assistance
to conduct a study of the impacts of this federally settled legal
dispute, we would proceed with an independent study. Absent federal
support, we are forced to rely on previously prepared studies funded by
Friant and studies on the impacts of past droughts.
3. ``Has the County of Tulare prepared any independent analysis of
the economic impacts of the water releases required by the Settlement
on the County? If so, what did the studies conclude?''
The County has not prepared an independent analysis of the economic
impacts of the water releases required by the Settlement.
4. ``Has the County of Tulare considered any specific programs or
projects that would mitigate or avoid impacts on groundwater conditions
and/or potential economic impacts? If so, what are the programs and
projects?''
Considering the County of Tulare was only informed of the details
of the Settlement late last year, the County has not had an opportunity
to consider any programs or projects. If a feasibility study is done on
the restoration of the river, it would provide cities and counties the
opportunity to weigh in on a public process and the time to consider
any mitigating factors.
Nevertheless, the County has requested that H.R. 24 be amended.
Again, Tulare County did not participate in the negotiations that lead
to the current form and content of H.R. 24, and we are concerned that
significant water supply shortages could result from the release of
restoration flows from Friant Dam, with concomitant impacts on our
groundwater basin and local communities that support irrigated
agricultural production in Tulare County.
For these reasons, the County of Tulare requested an amendment to
H.R. 24 to authorize the Secretary of the Interior to construct
facilities required to implement the recirculation, recapture and reuse
elements of the Water Management Goal established by the Settlement
Agreement. Specifically, we proposed adding a new Section 4(a)(5),
which would provide:
``(5) STUDIES AND FACILITIES.-
(A) IN GENERAL. -The Secretary is authorized and directed to
conduct feasibility studies for and to construct new pumping
and conveyance facilities on the mainstem of the San Joaquin
River above the town of Vernalis required to implement the
recirculation, recapture, and reuse elements of the Water
Management Goal of the Settlement.
(B) DEADLINE.-The study and construction of facilities under
subparagraph (A) shall be completed prior to restoration of any
flows other than Interim Flows.''
The County is aware that Congress is generally reluctant to
authorize under federal Reclamation law the construction of facilities
prior to the preparation and a submission of a feasibility report that
describes the estimated cost and potential benefit of the proposed
facilities. Deviation from this principle is warranted in this
circumstance because H.R. 24 would authorize the Secretary to implement
a massive fishery restoration program at unknown costs and without any
analysis of the potential for restoring a naturally reproducing salmon
fishery, which is the Settlement Agreement's Restoration Goal.
Moreover, the Settlement Agreement provides that the Restoration Goal
and the Water Management Goal shall have equal priority. In as much as
H.R. 24 authorizes actions necessary to achieve the Restoration Goal,
it only seems reasonable that the Act would also authorize the
Secretary to take the actions necessary to achieve the Water Management
Goal.
If this amendment were made to H.R. 24, Tulare County could be
confident that the Secretary would have the means needed to avoid
devastating water supply impacts, and Tulare County would be in a
position to support H.R. 24.
5. ``Your written testimony makes reference to a new well drilled
by the City of Lindsay nearly 3 miles outside of the City limits. You
stated that the distance outside the City limits was related to
salinity and nitrate water quality issues. Are you aware of what caused
the salinity and nitrate problems necessitating the drilling of a well
so far outside the City limits?
The City of Lindsay had to drill 3 miles outside of the City limits
to find water that met water quality standards. Lindsay and other
Eastside communities along the foothill have a high nitrate content in
the under ground water supply. It appears that the high nitrate content
may be naturally occurring. The State of California recently did a
study involving domestic wells on the East side of Tulare County and
found that many of the wells had high concentrations of nitrates even
though they were located in areas without active farming. In a couple
of years we may be able through technology to trace the origin of the
nitrates. I believe that an environmental impact report on the loss of
surface water would clear up a lot of the questions and concerns raised
by this settlement.
Question from Congressman Nunes:
1. ``If all of the other parties involved in the negotiations
concerning the form of H.R. 24 were to agree, would your organization
support an amendment of H.R. 24 authorizing the construction of pumping
and conveyance facilities required to implement the recirculation,
recapture, and reuse elements of the Water Management Goal of the
Settlement?''
While we were not included in the negotiations or are we currently
considered a third party, we would support any project that would bring
back the lost water.
______
Mr. Radanovich. Thank you, Mr. Ishida, we appreciate your
testimony.
Next I think we will open it up to questions.
Mrs. Napolitano. Yes, but before we do that, I would like
to receive into the record, Mr. Ranking Member, two pieces of
testimony that have reached our attention. One is from the San
Joaquin Water Authority, the Exchange Contractors, dated March
1, in support of the bill. And the second one a letter from
Metropolitan Water District in Southern California dated
February 27, the same support for H.R. 24. And without
objection, I will enter them into the record.
Mr. Radanovich. Without objection, so ordered.
[NOTE: The letter submitted for the record by Jeffrey
Kightlinger, General Manager, and Timothy F. Brick, Chairman,
Board of Directors, Metropolitan Water District of Southern
California, Los Angeles, California, and the letter submitted
for the record by the San Joaquin River Exchange Contractors
Water Authority, Los Banos, California, have been retained in
the Committee's official files.]
Mr. Radanovich. If I may, I don't have any specific
questions for this panel. I did want to express my appreciation
to the third-party negotiators in this thing.
When this started quite a long time ago, the negotiations
had to be only between the Friant Water District and the NRDC.
But those clearly were not the only agencies and water entities
affected by what might result in some kind of agreement. And it
ended up being very frustrating I think for a lot of people to
have to sit on the sidelines for an awful long time while the
government and NRDC and Friant hammered this thing out. And
then it was only after a long time, and after that occurred,
that the parties were able to negotiate with the third parties.
A lot of patience was displayed by you, Tom Birmingham,
you, Ken Robbins, Steve Chedester in the back there, and a lot
of other folks. And I just want to express my appreciation to
every one of you for hanging on until the negotiations got
done, and then for being willing participants at the time when
we were able to actually bring third parties in and negotiate
this. I think you guys did a great job, and we appreciate
everything you did for it, and appreciated your patience in it,
as well.
And that is really as much as I have to say right now.
Grace?
Mrs. Napolitano. Thank you. And our thanks to you, too,
because of your effort on bringing it to the table and getting
with Senator Feinstein, and being able to coordinate those
parties that began to see the value of reaching an accord,
rather than fighting each other in court.
And I take my hat off to you for that valiant effort. There
are maybe some unintended consequences in the future; we don't
know. We look forward to being able to find a solution for them
as we move along, where there is future legislation that will
take care of whatever little thing got left behind. Nothing is
perfect, and we don't expect it to be, because things do
change.
But in the meantime, the fact that all the parties were
able to move in the same direction, giving way to some of the
things that you felt were important to reach the accord is very
admirable. And I think it will stand in the annals of this
House, at least this committee, of how accords can be reached
by bringing all the parties to the table, and sitting at the
table, and maybe locking the door until you do reach an accord.
And with that, I would like to start off with a question to
Mr. Ishida. In your testimony you referred to the rapid
population growth in your area and your concerns about the
growth, along with the water loss from the settlement, which
raises concern about the water supplies. Other communities in
the West have had to deal with this explosive population growth
and been able to stabilize their water demands. And I can tell
you that Southern California is a perfect example.
This happened also in the Tucson area of Arizona, and the
MET in Los Angeles area--I have worked with them for many
years--have managed to be able to have addressed the growth
without harm.
Is it possible that those experiences of those communities
in implementing water conservation can be applied to Tulare
County?
Mr. Ishida. Part of the problem is one third of our
residents do not live in incorporated cities; they live in
hamlets. There must be about 17 hamlets in Tulare County. These
housing tracts vary from 50 people to 300, or excuse me, 50
homes to 300 homes. They do not have the funds available to
them to service their water quality issues without outside
help.
Major cities like Los Angeles, even Vacaville, have
resources available to help them with their water quality.
These small communities do not. They were founded by the
Oklahoma migrants that moved into California in the forties,
and now they are populated by Hispanic populations to the
extent they are probably 80 percent or more Hispanic.
Mrs. Napolitano. Is the county and the state then able to
step in and help those communities to be able to have access?
Mr. Ishida. We do not have the funds within our general
fund to help those communities to a great extent.
A new domestic water well for one of these local water
providers will cost about $400,000 to drill. So if you divide
that among the users, it gets pretty significant cost. In fact,
they have the highest water rates in the county.
Mrs. Napolitano. Thank you. Mr. Birmingham, how do you
respond to the suggestion that this legislation should be
linked to implementation of a drainage solution for the west
side of the valley?
Mr. Birmingham. I am not aware that anyone has actually
made that suggestion. I have read a statement from Mr. Nunes
that discussed the potential, but I have not been made aware
that anyone has specifically proposed linking this legislation
to a potential settlement of issues related to drainage.
I will make some observations, however. But I do think that
there are some, there is some connection between resolution of
the drainage issue and this settlement, the settlement
described in H.R. 24. And those are that implementation of the
concepts that were described to Congress several weeks ago by
Reclamation would result in the elimination of agricultural
drainage discharges into the San Joaquin River, which would
improve water quality, and would facilitate restoration of the
river.
These are clearly two of the largest resource issues in the
San Joaquin Valley. There is the potential that implementation
of the concepts that were described by Reclamation would result
in money that is currently in Reclamation's budget and being
spent on drainage being made available to implementation of the
settlement agreement.
As an example, the 2008, the budget request submitted by
the President has in it approximately $4.3 million that would
be spent on implementation of drainage within the San Luis
Unit, primarily the implementation of the West Side Regional
Drainage program. If the concepts that we were talking about a
few weeks ago with Congress were implemented, that $4.3 million
could be made available for the implementation of this program,
and help with the pay-as-you-go rules that are being
implemented by the House.
Now, having said all of that, I think that it is critically
important that this legislation, H.R. 24, move ahead quickly,
for reasons that other witnesses have described. And I am among
the people who signed the blood oath, that we would not propose
or support any amendment unless it were supported by all of the
other participants in those discussions. And so we would not
propose linking the two issues.
One other observation I would like to make, Madame
Chairman, if I may, is that----
Mrs. Napolitano. Chairwoman, if you please.
Mr. Birmingham. I beg your pardon, Madame Chairwoman.
Mrs. Napolitano. No problem.
Mr. Birmingham. The opportunity to derive benefits from the
resolution of the drainage issue won't evaporate if the two
issues move ahead independently. If H.R. 24 is enacted, and
ultimately there is a resolution of the drainage issues, the
potential benefits that I have described in the linkages
certainly would still exist.
Mrs. Napolitano. Thank you. And I will take the priority of
the Chair for two more questions, so I don't have to go to a
second round, and let you nice folks go home.
What protections, Mr. Robbins, and consideration would the
third parties receive if this settlement were not enacted and
the litigation were settled in Federal Court? What would the
effects be on the third parties in that scenario?
Mr. Birmingham. Obviously, that is a difficult question to
answer because we don't really know what scenario the Judge
would have.
Mrs. Napolitano. Would you pull it closer, please?
Mr. Birmingham. One can easily speculate that the
reintroduction of endangered species into the Upper San Joaquin
River would have resulted in the straying of those fish into
other streams and into other projects. When those projects were
in need of change of relicensing, or when take began to happen,
you could easily suggest that water supply losses, reliability
losses, power generation losses, perhaps even flood control
protection, could be impacted under those circumstances.
Now, there are mitigations available for those items. And
the mitigations that are proposed in this bill could be
separately enacted, but we are most grateful that the
settlement is moving forward with these mitigations. We are
very pleased to see that all of those potential issues go away,
with respect to the adoption of this bill.
Mrs. Napolitano. Thank you. You feel, then, they are
confident that the settlement and the legislation will provide
sufficient safeguards.
Mr. Birmingham. Yes. When enacted, 10[j] and 4[d] along
with the Title 18 rules relative to FERC, will provide adequate
safeguards for downstream project operators, to ensure that the
reopening of the river and the reintroduction of spring-run
salmon will not impact those projects. At least until 2026,
when all the other projects have the potential for being looked
at again under the settlement.
Mrs. Napolitano. Do you have any idea of any unforeseen
impacts? If they become apparent, what recourse would you have?
Mr. Birmingham. Such as endangered species issues? Well, in
the event that we begin to see a success of this experiment, in
that the spring run flourish, my suggestion is that we might
not have a lot of the impacts that we are fearful of anyway.
In the event the experiment does not work, and some other
form of salmon becomes the fishery of concern, my suggestion is
that the experiment will not have worked as suggested, and that
those impacts will not be hitting us on the San Joaquin,
either.
So I think that this is a win-win, frankly. The opening of
the river is a noble cause, and reintroducing salmon into the
upper river is a noble effort. And we will hope that the
administrators of the program will be successful, and that the
mitigations that we have set out here will cover us.
If they haven't, we obviously will be back to talk to you
about what more we might be able to do in terms of mitigation.
Mrs. Napolitano. We hope it will not be necessary.
Mr. Birmingham. Absolutely.
Mrs. Napolitano. Mr. Radanovich.
Mr. Radanovich. Thank you, Madame Chair. Mr. Costa?
Mr. Costa. Thank you. I have a question that I want to ask
Mr. Birmingham and Mr. Robbins, and I will ask it and let you
think about it. And then I want to make a comment.
Actually, it was a question that I was going to ask the
previous panel. So think about what you believe being involved
in all the details last fall of the negotiations, what are the
key aspects for successful implementation, given your long
history and background.
But first, I wanted to acknowledge, as you did, Madame
Chairperson, Congressman Radanovich's hard work. I know this is
a difficult time for him and his family, and our thoughts and
prayers are with you, as well as Senator Feinstein and all the
parties that have worked on this, even when we have at some
point agreed to disagree on third-party impacts.
And this is the statement I want to make, and I want to put
a fine point on it, to Mr. Ishida, who spoke very well on
behalf of the citizens of Tulare County, as well as the farmer
from Los Banos, Mr. Cannon Michael.
I think the context has to be looked at in the bigger
picture. It is one of the reasons we are doing this regional
water plan. We have over 4 million people living in the Valley.
It is estimated by the year 2030, between Bakersfield and Yuba,
we are going to have another three to five million more people
in the Valley, and 70 percent of them are going to be between
Sacramento and Bakersfield.
Now, this is the second time the Valley has been asked to
give at the office, so to speak. In 1994, over 1.2 million
acre-feet was reallocated for purposes of water quality and
restoration of the environment. And that has had a lot of
pluses. As a result of this agreement being enacted with the
enabling legislation, over 160,000 acre-feet will go from the
constituents primarily of Congressman Nunes, but some in my
area and Congressman Radanovich's area, again to restore the
river, to improve the environment, to improve water quality.
All noble goals.
But it is important that our colleagues in California and
throughout the Congress understand that we have our needs, and
we have not been diligent, or we have not been unfocused on the
necessity of water conservation.
In the last two decades, our water agencies in the
agricultural areas, as well as our cities, have made the same
sort of efforts that we have had in Southern California. You
know why? Because I have been involved with them, and I have
hammered them. Not just because of that, but it is sound water
management policy.
When the cost of water went from $10 an acre-foot to $50
and to $100 an acre-foot and to $120 an acre-foot, guess what?
People used that resource differently.
And so conservation in terms of alternative irrigation
technologies, in terms of pipelining, in terms of land piping,
all of those things, drip irrigation, have been dramatically
implemented over the last 15 years. As a matter of fact, even
George, our colleague, Congressman Miller, who has been a
critic oftentimes of Westlands Water District, has acknowledged
the fact that they are very good water conservators because of
the preciousness of that resource.
In cities like Fresno we took the admonitions that my
colleagues in Southern California talked about in terms of
water meters. We have turned that thing around, and with the
growth.
But Mr. Ishida points out, and I think it is very
important, we have a lot of communities that just aren't
cities. And even the cities that are cities are 5,000 to 10,000
people population. They don't have the resources to do this.
We haven't got, the country doesn't have, the resources in
many of these cases, either. We have counties that are just
trying to keep hospitals open, trying to keep county healthcare
open, trying to build roads.
I fought my last term for $1 million for the community of
Alpaugh to improve their water system. You would think I was
pulling teeth, because it was 300 residents. I mean, they are
having to pipe water in. It is in Congressman Nunes's district.
So the fact is we need to understand that we can't keep
reallocating water when we have--I mean, even if we are not
going to grow food for our tables, for the state and for the
nation, we are growing homes. And so we can't continue to just
reallocate water from our constituents, from our citizens, and
not believe and not understand that we need to not only do
conservation. We are going to do more than conservation,
absolutely. I am a strong advocate of water conservation, both
municipal and agricultural.
But we are also going to need to improve our water supply.
And it is important that everybody understand that. Because you
can't make more with less in all cases, which we are being
asked to do.
The questions to the two of you, my time has run out.
Mr. Birmingham. Well, I will try and, with permission of
the Chair, try to respond to your question, Mr. Costa.
From our perspective, the key aspect for successful
implementation of the settlement agreement and the restoration
program is the parties moving forward in good faith, and with a
continued respect for the interest of other parties.
The Chairwoman made reference to the value of resolving
conflicts of this type through reaching an accord. And it is
interesting that she would choose that word. Because in 1994,
Westlands, along with other south of Delta agricultural water
service contracts, entered into what we called the Bay Delta
Accord. And we voluntarily gave up approximately 25 percent of
our water supply for restoration of the Bay Delta.
And at the time, former Secretary Babbitt said--and this is
a quote--a deal is a deal. If the Department of the Interior
determines that we need additional water for the implementation
of this restoration program, we will acquire it from willing
sellers. Unfortunately, that didn't happen. And the program
really has fallen apart, because different groups have said OK,
we got what we thought we were going to get out of the program;
now the rest of it should stop.
This settlement has two goals: a restoration goal and a
water management goal. And both of them are supposed to be of
equal importance. And for this program to proceed successfully,
the parties are going to need to continue to demonstrate their
willingness to act in good faith, the same kind of willingness
that resulted in the compromise language contained in H.R. 24.
Mr. Robbins. Mr. Costa, I would want to acknowledge,
because it hasn't been done today, your support, and
Congressman Cardoza's support, in holding open the curtains for
the third parties to make sure that we actually had access to
the table. And we are very much grateful for that.
I think the key issues for us, as third parties, revolve
around two things. First is the implementation actually of the
physical improvements that are necessary. Making sure, for
instance, that the process for deciding about Reach 4[b] is
open and clear and transparent, and that the parties that are
affected have access to that process. And I believe that the
legislation, combined with the MOU, makes that happen.
And the second, of course, is issues having to do with the
reintroduction of salmon; making sure that the Secretary of
Commerce's process, which is set out in the Endangered Species
Act relative to harvesting spring run from other tributaries
and bringing them to the San Joaquin, and their reintroduction,
is done in a timely and orderly and transparent fashion, so
that we may also participate in that process, and be ready for
it when it occurs.
I did want to also offer maybe a piece of hope as well,
because the water management goals of the Friant settlement
process is something I think that impacts the third parties as
well. And I think we are prepared to assist in that.
There are times in which those of us that are downstream
can assist in both water supply reliability and in mitigation
requirements. And so I think we stand ready to participate, as
well. But we have a longstanding relationship in what is known
as the San Joaquin River Group Authority. We actually all
belong to that same agency. And I think it was the
relationships that we had in that agency and in our prior
dealings with one another on the other big settlement on the
San Joaquin River Settlement Agreement that was, that led us to
the confidence we had in each other, and in the process to make
this settlement happen.
So the endangered species issue, the implementation of the
physical plant issue, and the transparency; those are the three
big things, I think, for us.
Mr. Costa. Thank you.
Mr. Radanovich. Thank you, Mr. Costa. I would like to
comment. I thought your remarks were excellent, and I want to
associate myself with those remarks. The need for water
reliability and inadequate supply is something that cannot be
left, and projects like the Westlands Drainage Proposal I think
are projects, incredible projects, I think, that are worth
taking a serious look at and supporting.
Mr. Costa. It is the Bureau's proposal.
Mr. Radanovich. It is the Bureau's proposal, forgive me.
Yes. Mr. Nunes.
Mr. Nunes. Thank you, Mr. Radanovich. I want to talk a
little bit about Mr. Costa, your comments about Alpaugh I think
were very fitting being that the million dollars that you got
them was not enough, and then we had to go back through rule
development and get them another $2.5 million for their water
supply.
And Mrs. Napolitano, I think it is important not to gloss
over this; that Mr. Ishida brought up in his testimony that
there are very, very poor populations, entirely Latino
basically, that are living off of this water supply. And I
think Mr. Dooley said it very honestly in his testimony, that
they have made a business decision. But the constituents that
Mr. Ishida has and that I have don't have the ability to make
business decisions.
You are looking at $3.5 million that has been spent for one
little community of 300 people. And that water quality is
diminishing as we speak. So when you take, it always goes back
to the same point. If you are going to take the 200,000 acre-
feet out of that basin, and not put it back, there are going to
be, since the communities weren't considered third-party
impacts--we will call them fourth-party impacts, since they
were never involved in the settlement--the fourth parties to
this agreement are going to be severely, severely hurt. And
that is what, without changes.
You know, I have said all along, why don't we just put some
concrete ways, teeth to this legislation, to bring the water
back. I don't think that is a very hard request. But it is
unfortunate that we didn't have more time to ask the first
panel. But NRDC continues to oppose any types of real teeth,
real mitigation measures to this settlement. And that is all
these people are asking for is mitigation.
Mr. Birmingham and Mr. Michael and Mr. Robbins, they were
third parties. They were taken care of. My constituents were
not. The farmers made a business decision, so they have been
taken care of, at least to what they feel that they have been
taken care of in this settlement, other than I do believe--and
I know Friant is not up here any longer--but there are farmers
that have requested, Friant farmers that requested for
mitigation.
Now, Mr. Dooley, I don't know if they brought that to your
attention or not, but there are farmers within my district that
have requested mitigation through their boards. And their
boards are trying to come up with mitigation measures that will
work, that are more than this. They have asked for something in
addition to these proposals that are here.
So I just think that we have to be serious about what we
are going to do to mitigate in this legislation. I hope, Mrs.
Napolitano, that we can do it. I mean, it needs to be done.
Maybe we don't change the settlement, but at least try to, on
the same vehicle that this is going to go under, try to put
some kind of mitigation in here to protect these communities
that Mr. Ishida is talking about. I think it makes a lot of
sense.
And one of the ways, and I wish that we could have asked
this of NRDC and Friant, is that Westlands--and you kind of
talked about it in your first question to Mr. Birmingham--the
Bureau of Reclamation and Westlands agreement on the
settlement, they are coming out to your committee to ask you to
aid in this implementation of the settlement, I think it
clearly provides about 100,000 acre-feet of water, on average,
that would meet half the goal.
Now, I would really like to know what NRDC thinks of that.
Would they support that water, if you could work out the
settlement, would they support that water being used to
mitigate for my constituents to meet the water management goal?
Mr. Radanovich. Excuse me, Madame Chairman. As I recall,
though--may I? If you have written questions of previous, if
you have questions of a previous panel, I would ask the Chair
to allow time for written statements and written answers to be
allowed, and be part of the record.
I mean, I don't see where their approval of a proposal out
there by the Bureau has anything to do with this legislation. I
mean, things that are relevant----
Mr. Nunes. Because there is water available that could go
to meet the water management goal, and I think it is important
in these discussions to----
Mr. Radanovich. It is not relevant to this bill.
Mrs. Napolitano. It has not been agreed to, so it is not
part of the bill. And I think that----
Mr. Nunes. I don't disagree. But there are severe
consequences to this legislation.
Mrs. Napolitano. Then that is something that----
Mr. Nunes. And if you guys want to ignore that----
Mrs. Napolitano. Excuse me, sir.
Mr. Nunes. Yes, Madame Chairwoman.
Mrs. Napolitano. Thank you. You and I have discussed the
ability to be able to bring it up. You have brought it out.
Now, since it is not part of this legislation, I think we need
to either submit for the record those questions, and maybe put
into the minds of the people who may be able to consider
addressing that specific issue--and I agree with you in terms
that some areas do not get into the agreement, for whatever
reason. But the major parties that are going to make things
happen and hopefully be able to help address some of these
unintended consequences can be part of what this is all about.
Or am I wrong?
Mr. Radanovich. No, I think the gentlelady is right. I do
remember, during the time when this issue was being negotiated
over in Senator Feinstein's office, that everybody who is here
was there. And everybody was asked, at the time everybody
agreed, did they have any other ideas or input that should go
into this agreement. And nobody spoke. And I think----
Mr. Nunes. That is not true, Mr. Radanovich.
Mr. Radanovich.--this is probably the appropriate time----
Mr. Nunes. That is absolutely, that is absolutely false.
Mr. Radanovich. No. Sorry.
Mr. Nunes. Mr. Costa was there. Mr. Costa said that there
were other concerns.
Mr. Radanovich. No.
Mrs. Napolitano. OK, I think we need to move forward. I
will take the chair back. I will take the time. I believe----
Mr. Birmingham. Excuse me, Madame. I just wanted to make
sure that the record is clear, because Mr. Nunes has made
reference to a settlement agreement between Reclamation and
Westlands Water----
Mrs. Napolitano. You know, you are----
Mr. Birmingham. Thank you. I just want to make sure that
the record is clear. Reclamation, working with Westlands and a
number of other contractors, have come up with some concepts.
But I would not want the Subcommittee to be left with the
impression that there is a final settlement agreement.
The concepts are continuing to be developed. And, as I
indicated in my response to your question earlier, Madame
Chairwoman, there are potentially some linkages. I am not
suggesting that the two settlements should be linked together,
but there potentially are some benefits. But there is not a
settlement agreement.
The concepts were disclosed to Members of Congress, because
Reclamation, as well as the contractors, thought that it would
be an appropriate time to expand the group of participants in
those discussions.
And so we are a ways from reaching conclusion, and in part,
that is why I think it would be inappropriate to specifically
link the two. Because, as I said earlier, it is our impression
that H.R. 24 needs to move quickly.
Mrs. Napolitano. Thank you, sir. And I would like to be
able to echo those remarks, because I believe that you don't
want to lose the momentum; nor the longer this continues to
drag, the more there are other possible issues that could come
up that should be considered by the people that are part of the
agreement and the accord. I look forward to that.
Mr. Costa.
Mr. Costa. Yes, thank you, Madame Chair, I am glad you
clarified that.
Just for the point of clarification here, because I know we
are closing, we are finishing up here, and you and I have
another meeting to go to.
The reference that was cited and the comment that I made,
and some of the parties that are testifying here were there, I
think it was one of the fifth or sixth--it was the last
meeting, and Senator Feinstein went around the room and asked
were there any other issues there. And three of the Members who
were participating weren't there.
And I said well--and of course that is why I brought up the
other issue earlier about the holding contracts, because I
didn't know about it at the time. But I said as far as
Westlands, which is in my district, and some of the other third
parties that I had been helping, trying to help to negotiate, I
believed we had resolved the issues. But I said I cannot
speak--and I did a bit of euphemism humor that I am known for
on occasion--I did not pretend to speak on behalf of the
Portuguese caucus. Nonetheless, I knew my colleague,
Congressman Nunes, still had concerns as it related to his
constituents in his area. But that as far as the folks that I
had worked with, that I felt we had an agreement.
But I did not, just for clarification purposes, I
acknowledge that I believe that there were still some
outstanding concerns or issues.
Mrs. Napolitano. Thank you, Mr. Costa. With that, I will
conclude this hearing, and thank the panel for being with us.
It has been very fruitful, and thank you for your
participation.
Under Committee Rule 4[h], additional material for the
record should be submitted by Members or witnesses within 10
days after this date. I would appreciate the cooperation of all
the witnesses in responding promptly to any questions submitted
to you in writing, and look forward to continuing this great
work you have done.
With that, this meeting is adjourned.
[Whereupon, at 1:00 p.m., the Subcommittee was adjourned.]
NOTE: Additional information submitted for the record has
been retained in the Committee's official files. These include:
Letter from Hamilton Candee, Natural Resources
Defense Council, dated March 15, 2007, with two attachments--a
document from Professor Michael Hanemann entitled ``Comments on
`Analysis of the Impacts of Surface Water Reductions on the
Eastern San Joaquin Valley of California' by the Northwest
Economic Associates and `Impacts of Water Reallocations on the
Eastern San Joaquin Valley' by the University of California''
and a copy of the March 7, 2007, Bakersfield Californian
editorial ``Water, peace to flow soon.''
``The Cost of Reducing Friant's Surface Water
Supply'' by the Friant Water Users Authority submitted for the
record by The Honorable Devin Nunes
Supplemental Expert Report of Daniel B. Steiner
submitted for the record by The Honorable Devin Nunes
Letter submitted for the record by Allen Ishida
from Peter Carey, President/CEO, Self-Help Enterprises,
Visalia, California
Letter submitted for the record by Allen Ishida
from Laurel Firestone, Co-Director and Attorney at Law,
Community Water Center, and Martha Guzman, Legislative Analyst,
California Rural Legal Assistance
Letter submitted for the record by Allen Ishida
from Francisco Martinez, President, Plainview Mutual Water
Company, Strathmore, California
Article submitted for the record by Allen Ishida
from the Fresno Bee entitled ``Many in Tulare Co. can't count
on clean water'' dated February 11, 2007